ADJ16907298 · January 27, 2025

The record was insufficiently developed to determine industrial causation; further development was required to ensure substantial evidence and compliance with procedural rules.

From the decision · page 3Turning to the merits, previously in this matter, on February 27, 2024, the WCJ who ultimately issued the October 22, 2024 Findings and Award issued an Order Vacating Submission and to Further Develop the Record. In the Order, the WCJ wrote, "In this case neither the opinion of Dr. Broderick nor that of Dr. Schakel is based on a review of the entire medical record. Dr. Schakel did not have an opportunity to review all of the applicant's medical records, which are substantial." (Order at p. 2.) The WCJ determined that further development of the record from Dr. Schakel and Dr. Broderick was necessary to have a full record upon which to base a decision.

The record was incomplete as neither Dr. Schakel nor Dr. Broderick reviewed the entire medical record relevant to the injury.

Favours neutral

This lack of a full record prevented a substantial evidence basis for the WCJ's decision on industrial causation.

From the decision · page 3Turning to the merits, previously in this matter, on February 27, 2024, the WCJ who ultimately issued the October 22, 2024 Findings and Award issued an Order Vacating Submission and to Further Develop the Record. In the Order, the WCJ wrote, "In this case neither the opinion of Dr. Broderick nor that of Dr. Schakel is based on a review of the entire medical record. Dr. Schakel did not have an opportunity to review all of the applicant's medical records, which are substantial." (Order at p. 2.) The WCJ determined that further development of the record from Dr. Schakel and Dr. Broderick was necessary to have a full record upon which to base a decision.

Opined that applicant's industrial trip and fall contributed to development of Charcot joint syndrome, despite pre-existing conditions.

The WCJ found Dr. Schakel's opinion relevant but noted the record was incomplete and required further development.

From the decision · page 3Although Dr. Schakel did author a supplemental report, it is not clear whether he reviewed all of the available records pertinent to the applicant's alleged injury, nor whether these records were made available to him.3 Although Dr. Schakel acknowledges that applicant had pre-existing conditions that predisposed him to Charcot joint syndrome, Dr. Schakel opines that applicant's industrial trip and fall contributed development of Charcot joint syndrome. (Undated report of Dr. Schakel, Ex. 2 at pp. 1-2.) Nevertheless, in order for this matter to be determined on a full record, and in order to ensure compliance with the WCJ's earlier February 27, 2024 Order, Dr. Schakel should review all pertinent medical records and issue a supplemental report documenting the documents reviewed and any conclusions based on the records review.

Provided opinions on industrial causation that the WCJ was urged to follow instead of Dr. Schakel's.

The WCJ noted the defendant's argument favoring Dr. Broderick's opinions but found the record incomplete for a full decision.

From the decision · page 1Defendant contends that the WCJ erred in finding that applicant sustained industrial injury in the form of Charcot joint syndrome. Defendant argues that the WCJ should have followed the opinions of qualified medical evaluator orthopedist David M. Broderick, M.D. rather than the opinions of primary treating physician orthopedist Mark E. Schakel, M.D. We have not received an answer. The WCJ who issued the Findings and Award has retired, so a different WCJ has filed a Report and Recommendation on Petition for Reconsideration.

Labor Code section 5909

Labor Code section 5909

Governs the timing and processing of petitions for reconsideration by the Appeals Board.

From the decision · page 1Preliminarily, we note that former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days

Administrative Rule 9781 (Cal. Code Regs., tit. 8, 9781)

Administrative Rule 9781

Pertains to the obligation to provide medical records to treating physicians.

From the decision · page 33 In the Report, the new WCJ states that defendant breached its obligation to provide medical records to Dr. Schakel pursuant to Administrative Rule 9781 (Cal. Code Regs., tit. 8, § 9781.) It is unclear from the record whether this regulation is applicable to this case, or whether defendant breached it. In any event, all findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) Regardless of any fault by either party, this matter should be determined on a full record.

Incomplete medical record review by Dr. Schakel and Dr. Broderick, necessitating further development of the record

From the decision · page 3Turning to the merits, previously in this matter, on February 27, 2024, the WCJ who ultimately issued the October 22, 2024 Findings and Award issued an Order Vacating Submission and to Further Develop the Record. In the Order, the WCJ wrote, "In this case neither the opinion of Dr. Broderick nor that of Dr. Schakel is based on a review of the entire medical record. Dr. Schakel did not have an opportunity to review all of the applicant's medical records, which are substantial." (Order at p. 2.) The WCJ determined that further development of the record from Dr. Schakel and Dr. Broderick was necessary to have a full record upon which to base a decision.