Authorities as the decision cited them, with how this panel applied each one.
Cal. Code Regs., tit. 8, 31.5(a), 41(c)(3) and 41.5(d)(4)
A WCJ may order replacement of a medical-legal evaluator if bias constitutes a disqualifying conflict of interest under AD Rule 41(c)(3).
Applicant failed to prove bias by Dr. Aval to warrant replacement; no basis to remove Dr. Aval as AME.
Lab. Code, 3202.5, 5705
Applicant bears burden to prove bias by preponderance of evidence for replacement of AME.
Applicant failed to prove bias by Dr. Aval to warrant replacement; no basis to remove Dr. Aval as AME.
From the decision · page 7Applicant as the moving party bears the burden of proving by a preponderance of the
evidence that Dr. Aval exhibited bias towards her such that a replacement evaluator is warranted.
(Lab. Code, § 3202.5, 5705.) By her own admission in trial testimony, applicant has no specific
evidence of race-based or gender-based bias by Dr. Aval. The record therefore does not support a
finding that Dr. Aval demonstrated bias against applicant such that a replacement physician is
warranted.
Lab. Code, 3208.3(b)(1)
Psychiatric injury compensability requires showing actual events of employment were predominant cause under Lab. Code 3208.3(b)(1).
The record lacks substantial evidence to determine compensability of psychiatric injury; further development of the record is necessary.
From the decision · page 8(a) A psychiatric injury shall be compensable if it is a mental disorder which
causes disability or need for medical treatment, and it is diagnosed pursuant to
procedures promulgated under paragraph (4) of subdivision (j) of Section 139.2
or, until these procedures are promulgated, it is diagnosed using the terminology
Wilson v. State of CA Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board en banc)
Predominant causation threshold applies to psychiatric injuries whether direct or compensable consequence of physical injury.
The record lacks substantial evidence to determine compensability of psychiatric injury; further development of the record is necessary.
From the decision · page 10In order to assist the parties in further developing the record, we offer the following
guidance for evaluating whether the psychiatric injury is compensable. In Wilson v. State of CA
Cal Fire (2019) 84 Cal.Comp.Cases 393, 403-404 (Appeals Board en banc), causation of an injury
was discussed as follows in relevant part:
Lockheed Martin Corp. v. Workers' Comp. Appeals Bd. (McCullough) (2002) 96 Cal.App.4th 1237
A compensable consequence psychiatric injury requires the underlying physical injury to be compensable.
The record lacks substantial evidence to determine compensability of psychiatric injury; further development of the record is necessary.
From the decision · page 10A psychiatric injury may therefore be directly caused by actual events of employment or as a
compensable consequence of an industrial physical injury. (See Lockheed Martin Corp. v.
Workers' Comp. Appeals Bd. (McCullough) (2002) 96 Cal.App.4th 1237, 1249 [67
Cal.Comp.Cases 245] ["the precipitating physical injury constitutes an `actual event[] of
employment' within the meaning of [section 3208.3(b)(1)]" for a compensable consequence
psychiatric injury].) The predominant causation threshold in section 3208.3(b)(1) applies to
psychiatric injuries irrespective of whether they are pled as a direct injury or as a compensable
consequence of a physical injury. (Id.)