What the panel ordered
Defendant's Petition for Reconsideration is denied.
Defendant sought reconsideration of the December 21, 2020 Opinion and Order Granting Reconsideration and Decision After Reconsideration, which granted applicant total temporary disability from May 28, 2020 to September 17, 2020 and deferred further temporary disability issues.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Appeals Board found substantial medical evidence from the applicant's primary treating physician supporting temporary disability from May 28, 2020 to September 17, 2020, and denied defendant's petition for reconsideration due to failure to show newly discovered evidence could not have been produced earlier.
From the decision · page 1Defendant seeks reconsideration of the December 21, 2020 Opinion and Order Granting Reconsideration and Decision After Reconsideration wherein the Appeals Board granted applicant's Petition for Reconsideration and found that applicant is entitled to total temporary disability from May 28, 2020 to September 17, 2020 and deferred the issue of applicant's entitlement to temporary disability after that date.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's primary treating physician's reports addressed changed circumstances and were found substantial evidence for temporary disability.
Favours Applicant prevailed
This supported the Appeals Board's finding of temporary disability entitlement from May 28, 2020 to September 17, 2020.
From the decision · page 2In this case, the issue of applicant's entitlement to temporary disability was determined by the workers' compensation administrative law judge (WCJ) and the Appeals Board based on the medical evidence. The WCJ summarized applicant's trial testimony, but did not make explicit findings on the credibility of that testimony. The WCJ found that applicant was not entitled to additional temporary disability based on the reports of the panel qualified medical evaluator (PQME), which the WCJ found more persuasive than the reports of applicant's primary treating physician (PTP). (September 29, 2020 Opinion on Decision, p.6.) The WCJ explicitly stated that she did not determine whether the PTP's reports were substantial medical evidence. (Id. at p. 7.) The Appeals Board determined that the PTP's reports were substantial medical evidence. The Appeals Board also found that the contemporaneous reporting of applicant's primary treating physician was more persuasive than the stale PQME reporting. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal. 3d 372, 378-379 [35 Cal. Comp. Cases 525].) Here, applicant's changed circumstances were not addressed by the PQME and were addressed by her PTP.
Defendant failed to show that newly discovered evidence could not have been produced before the hearing.
Favours Applicant prevailed
This failure led to denial of defendant's petition for reconsideration.
From the decision · page 3(August 20, 2020, Minutes of Hearing and Summary of Evidence.) Defendant did not request that the record remain open for pending reports. In addition, in its Petition for Reconsideration, defendant did not describe any efforts to schedule applicant for an earlier evaluation with the PQME. With respect to the Dr. Bokarius report, defendant alludes to "efforts to secure the report prior to the hearing," but does not describe those efforts in detail. (Petition for Reconsideration, p. 4.) Because defendant failed to show that this evidence could not have been reasonably discovered or produced before submission of this case, we will deny its petition.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 5903(d)
Petitioner must demonstrate that newly discovered evidence could not have been produced at the hearing with reasonable diligence.
From the decision · page 2Turning to defendant's contention that reconsideration should be granted on the basis of newly discovered evidence, Labor Code section 5903(d) provides that a petitioner must demonstrate that "he or she could not, with reasonable diligence, have discovered and produced [the evidence] at the hearing." (Lab. Code, § 5903(d).) WCAB Rule 10974 states in part:
California Labor Code
Labor Code section 5909
Petition for reconsideration is deemed denied unless acted upon within 60 days, but time may be tolled for due process reasons.
From the decision · page 1As an initial matter, Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition
California Code of Regulations, title 8, section 10974
WCAB Rule 10974
Requirements for petitions for reconsideration based on newly discovered evidence.
From the decision · page 2Turning to defendant's contention that reconsideration should be granted on the basis of newly discovered evidence, Labor Code section 5903(d) provides that a petitioner must demonstrate that "he or she could not, with reasonable diligence, have discovered and produced [the evidence] at the hearing." (Lab. Code, § 5903(d).) WCAB Rule 10974 states in part:
California Supreme Court case
Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal. 3d 372
Relevant and considered opinion of one physician may constitute substantial evidence even if inconsistent with others.
From the decision · page 2In this case, the issue of applicant's entitlement to temporary disability was determined by the workers' compensation administrative law judge (WCJ) and the Appeals Board based on the medical evidence. The WCJ summarized applicant's trial testimony, but did not make explicit findings on the credibility of that testimony. The WCJ found that applicant was not entitled to additional temporary disability based on the reports of the panel qualified medical evaluator (PQME), which the WCJ found more persuasive than the reports of applicant's primary treating physician (PTP). (September 29, 2020 Opinion on Decision, p.6.) The WCJ explicitly stated that she did not determine whether the PTP's reports were substantial medical evidence. (Id. at p. 7.) The Appeals Board determined that the PTP's reports were substantial medical evidence. The Appeals Board also found that the contemporaneous reporting of applicant's primary treating physician was more persuasive than the stale PQME reporting. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal. 3d 372, 378-379 [35 Cal. Comp. Cases 525].) Here, applicant's changed circumstances were not addressed by the PQME and were addressed by her PTP.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's primary treating physician's reports were found more persuasive than the panel qualified medical evaluator's reports, which were considered stale.
From the decision · page 2In this case, the issue of applicant's entitlement to temporary disability was determined by the workers' compensation administrative law judge (WCJ) and the Appeals Board based on the medical evidence. The WCJ summarized applicant's trial testimony, but did not make explicit findings on the credibility of that testimony. The WCJ found that applicant was not entitled to additional temporary disability based on the reports of the panel qualified medical evaluator (PQME), which the WCJ found more persuasive than the reports of applicant's primary treating physician (PTP). (September 29, 2020 Opinion on Decision, p.6.) The WCJ explicitly stated that she did not determine whether the PTP's reports were substantial medical evidence. (Id. at p. 7.) The Appeals Board determined that the PTP's reports were substantial medical evidence. The Appeals Board also found that the contemporaneous reporting of applicant's primary treating physician was more persuasive than the stale PQME reporting. It is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal. 3d 372, 378-379 [35 Cal. Comp. Cases 525].) Here, applicant's changed circumstances were not addressed by the PQME and were addressed by her PTP.
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- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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