ADJ11262036 · January 5, 2024

The Board found no evidence warranting further development of the record or additional medical treatment based on the applicant's worsening symptoms without supporting medical evidence.

From the decision · page 4Applicant's testimony, taken into context with the medical record did not warrant development of the record as there is no evidence that applicant's alleged worsening symptoms are due to the current cumulative trauma. (Report, p. 2.)

The WCJ found 27% permanent disability caused by the injury, and the Board denied reconsideration of this finding based on substantial evidence including the AME reports.

From the decision · page 1Applicant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on October 13, 2023, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his neck, right shoulder, and right wrist, that the injury caused 27% permanent disability, and that applicant is entitled to future medical care for his right wrist and right shoulder.

Dr. Dericks opined that 100% of the cervical spine permanent disability was caused by a 2009 injury with only temporary exacerbation from the 2017 injury.

Favours Defendant prevailed

This medical opinion supported denial of further medical treatment and record development for the neck condition.

From the decision · page 3It is my opinion, based on a reasonable degree of medical probability, that 100 percent of the cervical spine permanent disability was caused by the 2009 injury and progression thereof, with a temporary exacerbation on 12.27.17. ... The primary treating physician should monitor the progression/regression of the cervical spine condition with the ability to make justifiable treatment plan modifications including, but not limited to updated diagnostic testing and corresponding specialty referral. This [sic] should be considered on the basis of the prior 2009 injury. (Joint Exh. 2, p. 15.)

Applicant testified to worsening symptoms but did not submit new medical evidence or request supplemental AME report.

Favours Defendant prevailed

Lack of new evidence or request for supplemental report meant no basis to develop the record further.

From the decision · page 4Further, it appears that the argument for further development of the record is based on applicant's testimony that he "underwent an MRI and electrodiagnostic study for his neck... approximately two to three months ago." (MOH/SOE, p. 4.) There is no evidence in the record indicating that applicant submitted the MRI or the electrodiagnostic study to Dr. Dericks and thereon requested a supplemental report. If, based on newly obtained medical records a request for a supplemental report from the AME had been made, and additionally if those records had been offered into the record as newly discovered evidence, the WCJ may have determined that there was good cause for continuing the trial or ordering it taken off calendar. However, absent the newly obtained medical records and a request for a supplemental report, there is no factual and/or legal basis for the WCJ to make that ruling.

Dr. Dericks opined that 100% of the cervical spine permanent disability was caused by a 2009 injury with temporary exacerbation on 12/27/17, and recommended monitoring and updated diagnostic testing based on the prior injury.

The Board relied on Dr. Dericks' opinion to deny further development of the record and additional treatment for the neck condition.

From the decision · page 3It is my opinion, based on a reasonable degree of medical probability, that 100 percent of the cervical spine permanent disability was caused by the 2009 injury and progression thereof, with a temporary exacerbation on 12.27.17. ... The primary treating physician should monitor the progression/regression of the cervical spine condition with the ability to make justifiable treatment plan modifications including, but not limited to updated diagnostic testing and corresponding specialty referral. This [sic] should be considered on the basis of the prior 2009 injury. (Joint Exh. 2, p. 15.)

Labor Code sections 5701, 5906; San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928

The Appeals Board has discretionary authority to develop the record but must balance this with parties' obligation to exercise due diligence before trial.

The Board declined to develop the record further due to lack of timely evidence and due diligence by applicant.

From the decision · page 4Finally, although under various circumstances the Appeals Board has the discretionary authority to develop the record (see Lab. Code, § 5701, 5906), the discretion to develop the record must be balanced with the parties' obligation to exercise due diligence to complete necessary discovery prior to a mandatory settlement conference and/or proceeding to trial. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986].) If a party fails to meet its burden of proof by obtaining and introducing competent evidence, it is not the responsibility of the Appeals Board to rescue that party by ordering the record to be developed. (Lab. Code, § 5502; McKernan, supra.) Here, as discussed above, prior to filing the Petition applicant took no action in support of the assertion that the record should be further developed. The only evidence pertaining to applicant's argument is his testimony that his neck and shoulder symptoms were getting worse. Having reviewed the trial record, we agree with the WCJ that:

Applicant's testimony of worsening neck and shoulder symptoms without supporting medical evidence

From the decision · page 4Applicant's testimony, taken into context with the medical record did not warrant development of the record as there is no evidence that applicant's alleged worsening symptoms are due to the current cumulative trauma. (Report, p. 2.)