ADJ7093760 · July 23, 2024

The Appeals Board granted the Petition for Reconsideration and deferred final decision pending further review of the merits and entire record, indicating procedural issues with the permanent disability increase commencement date determination.

From the decision · page 1Defendant seeks reconsideration of the First Amended Findings and Award ("F&A") issued by the issued by the workers' compensation administrative law judge (WCJ), wherein the WCJ found defendant owed applicant a 15% permanent disability increase pursuant to Labor Code section 4658(d)(2), payable commencing March 3, 2020.1 Defendant contends that the WCJ erred, and that the proper date for the commencement of the 15% increase should be November 30, 2022.

The WCJ did not make a finding as to when applicant became permanent or stationary or issue an award of permanent disability benefits.

Favours Applicant prevailed

This lack of finding raised concerns about whether the permanent disability increase commencement date was properly determined, leading to the grant of reconsideration.

From the decision · page 3Here, it is unclear from our preliminary review of the evidence and the existing record whether the legal issues have been properly identified and addressed. Specifically, we have been unable to locate in the record any finding by the WCJ as to when applicant became permanent or stationary, or any award of permanent disability benefits. Instead, it appears that in 2015 defendant was granted a credit for a third-party settlement against permanent disability advances it had paid prior to that date, but that the issue of permanent disability itself was deferred at that time, and has never been resolved in the interim. (See Findings & Order, 2/13/15, at p. 2 ("The issues of permanent disability and attorney's fees are deferred.").) Given the parties' current dispute, we are therefore concerned as to whether it was incumbent on the WCJ to first determine and issue findings as to applicant's permanent and stationary date or dates and entitlement to permanent disability, which section 4658, subdivision (d)(2) could then operate upon to increase.

Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159; Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; Great Western Power Co. v. Industrial Acc. Com. (1923) 191 Cal.724; State Comp. Ins. Fund v. Industrial Acc. Com. (1954) 125 Cal.App.2d 201; Gonzales v. Industrial Acci. Com. (1958) 50 Cal.2d 360; Azadigian v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 372; Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483; Dakins v. Board of Pension Commissioners (1982) 134 Cal.App.3d 374; Solari v. Atlas-Universal Service, Inc. (1963) 215 Cal.App.2d 587; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39; Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068; Lab. Code, §§ 5907, 5908, 5908.5, 5803, 5950 et seq.

Decisions by the Appeals Board must be supported by substantial evidence and based on admitted evidence in the record.

The Appeals Board reviewed the record and legal principles to ensure substantial justice and proper procedural handling of the Petition for Reconsideration.

From the decision · page 2I. We highlight the following legal principles that may be relevant to our review of this matter: It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) Further, decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit.