ADJ11602559 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ's Findings of Fact and Award affirmed.

Petition for Reconsideration filed by defendant and denied by WCAB panel, affirming WCJ's October 26, 2020 Findings of Fact and Award.

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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.

Temporary disabilityApplicant prevailedmultiple body parts

The WCJ found that defendant did not sustain its burden to prove entitlement to credit for benefits paid by the Occupational Accident Policy, which was wholly funded by applicant, and that defendant's reliance on Appleby and Ott was misplaced because the policy was not employer-funded.

From the decision · page 52. This WCJ did not err in finding that defendant did not sustain its burden of proving entitlement to credit for benefits paid by Occupational Accident Policy wholly funded by applicant against temporary disability benefits

Jurisdiction / venueDefendant prevailed

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code 4661.5

Applied to determine the correct temporary disability rate based on date of injury.

Labor Code 4909

Considered in relation to credit for benefits paid by Occupational Accident Policy.

Labor Code 3751(a)

Applied to prohibit employer from taking credit for benefits paid by employee-funded Occupational Accident Policy.

From the decision · page 6If the Occupational Accident Policy did include the aforementioned language, since this WCJ already found applicant to be an employee and not an independent contractor (Findings of Fact & Order, dated June 28, 2019), and that there is no evidence that defendant paid into said Policy, such language, as well as defendant's ongoing assertion of credit are a blatant violation of Labor Code § 3751(a).

Lozano v. WCAB (2002) 67 Cal. Comp Cases 970

Applied to determine that WCAB does not have duty to develop record when party with burden fails to act.

From the decision · page 8The WCAB does not have a duty to develop the record where a party who has the burden of proof recognizes the insufficiency of the record and does not take appropriate action. (Lozano v. WCAB (2002) 67 Cal. Comp Cases 970) Actually, defendant has yet to demonstrate how any terms and/or agreement in the Occupational Accident Policy, dated January 1, 2019, are relevant to the Occupational Accident benefits paid from February 3, 2017 to September 6, 2018. Based on the foregoing, this WCJ did not deny defendant's due process rights by excluding the Occupational Accident Policy or not developing the record. Lastly, defendant attached Exhibits A, B, and C to its Petition for Reconsideration. Exhibit A, Panel QME report from, Neil Ghodadra, M.D., dated November 7, 2019, has already been admitted into evidence as Applicant's Exhibit 3. Exhibits B and C are Minutes of Hearing (Further) and Summary of Evidence, dated August 25, 2020, and this WCJ"s Decision, dated October 26, 2020, respectively, which are part of the Board record. There is no need to attach any of these documents to defendant's Petition for Reconsideration. It is respectfully recommended that said attachments be detached and discarded pursuant to 8 CCR § 10945(c)(1).

ADJ11602559 · February 9, 2021

What the panel ordered

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The facts that decided it

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