WCAB PROCEDURE - Developing the record–When the medical record requires further development, the preferred procedure is to first seek supplemental opinions from the physicians who have already reported in the case. If supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator may be considered. If none of these options succeeds or is possible, the WCJ or the Appeals Board may then appoint a medical examiner. (See McDuffie v. Los Angeles County Metropolitan Transit Agency (2002) 4 WCAB Rptr. 10,080 [en banc].) Albert Vega v. Workers' Compensation Appeals Board, City of Long Beach 10 WCAB Rptr. 10,066 [Writ Denied]

WCAB PROCEDURE-Duty to develop the record–In this case, the injured worker was suffering from multifocal motor neuropathy and the record was required to be developed further as to whether he still required medical treatment and whether the required treatment was caused by industrial aggravation or caused solely by a nonindustrial condition. (See Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399.) Stuart Rubinstein v. Workers' Compensation Appeals Board, Westside Neighborhood Medical Clinic 8 WCAB Rptr. 10,162 [writ denied]

WCAB PROCEDURE- Duty to develop the record–A WCJ is required to develop the record only when there is no evidence upon which a determination can be made. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.) General Lighting Services v. Workers' Compensation Appeals Board (Michael Holmes)8 WCAB Rptr. 10,103 [Writ Denied]

WCAB PROCEDURE- Developing the record–The further development of the medical record is required when the reporting physicians fail to deal with the issue of apportionment under the new Labor Code §§4663 and 4664. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.) Los Angeles Community College District v. Workers' Compensation Appeals Board (Vivian Stokes) 8 WCAB Rptr. 10,021 [Writ Denied]

WCAB PROCEDURE– Duty to develop the record– The duty to develop the medical record arises when there is no substantial evidence, or unsatisfactory evidence, upon which to make a finding of fact. The duty to develop the record does not arise from the absence of proof of a claim in a physician's report. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.) [In this case, the treating rheumatologist reported that the injured worker's complaints were "consistent with" fibromyalgia and stated that the fibromyalgia was due to the specific injury, but at the same time recommended blood chemistry testing to determine if there was a systemic disease, and then concluded upon review of normal testing that there were "multiple factors" involved. The opinion did not go far enough to prove that fibromyalgia was caused by the injured worker's job activities.] Maria Arteaga v. Workers' Compensation Appeals Board, Gaiser Tool Company, Cypress Insurance Company 7 WCAB Rptr. 10,248 [Writ Denied]

WCAB PROCEDURE– Developing the record– The record must be developed when the medical evidence is deemed inadequate. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389. [In this case, the applicant failed to obtain any evidence about the issue of psychiatric injury, which was raised more than nine years earlier. The applicant could not avail himself of the opportunity to produce the required evidence by asserting that the record required further development.] Brien J. Arent v. Workers' Compensation Appeals Board, Merga Foundations, Inc. 7 WCAB Rptr. 10,029

WCAB PROCEDURE– Duty to Develop the Record– It is not appropriate to develop the record further when the discrepancies were caused by applicant's failure to give a complete history of his prior disabilities to his treating physicians. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.) Ernest J. Lowery v. Workers' Compensation Appeals Board, Laidlaw Transit 7 WCAB Rptr. 10,110

WCAB PROCEDURE– Developing the record– The record must be developed only when there is no substantial evidence on which to base a finding of fact on a particular issue. A finding can be made and upheld if there is any competent evidence on which to make a determination. (See San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928.) Antonio Morfin Torres v. Workers' Compensation Appeals Board, Colafrancesco Framing 6 WCAB Rptr. 10,336

WCAB PROCEDURE– Developing the record– The Appeals Board may seek additional medical evaluations when substantial medical evidence in the record is lacking as to industrial causation. (See Tyler v. Workers' Comp. Appeals Board (1997) 56 Cal.App.4th 389.) [In this case, in light of the Court of Appeal's new determination as to what constitutes an "actual event of employment," due-process considerations require that the matter be returned to a trial-level WCJ to develop the record as to whether applicant's interaction with irate customers was a predominant cause of his psychiatric injury.] Pacific Gas & Electric v. Workers' Compensation Appeals Board (Clifford Bryan) 6 WCAB Rptr. 10,267

WCAB PROCEDURE– Duty to develop the record– If a specific medical opinion is uncertain on the issue of causation, should the WCJ develop the medical record further on this issue? Select Personnel Services, Intercare Insurance Services v. Workers' Compensation Appeals Board (Gonzalo Gonzalez) 6 WCAB Rptr. 10,232

WCAB PROCEDURE– Duty to Develop the Record– The Appeals Board does not have a duty to develop the record when the party with the burden of proof recognizes the insufficiency of the evidence and fails to take appropriate action to remedy the record. (See McDuffie v. Los Angeles County Metropolitan Transportation Authority (2002) 4 WCAB Rptr. 10,080 [en banc]. Lozano v. Workers' Comp. Appeals Bd. (2002) 4 WCAB Rptr. 10,220 [writ denied].) Jose Cervantes v. Workers' Compensation Appeals Board, Fairchild Holding Corporation. 6 WCAB Rptr. 10,207

WCAB PROCEDURE– Developing the Medical Record– Notwithstanding the provisions of Labor Code §5502(e)(3) that closes discovery as to the parties at the Mandatory Settlement Conference and prohibits the admissibility of evidence thereafter absent demonstration that the party was unable to discover the proffered evidence by the exercise of due diligence, the Workers' Compensation Appeals Board is not a "party" within the meaning of that section, nor does it engage in "discovery." The Appeals Board is a tribunal exercising judicial powers and may exercise its constitutional duty to develop the record so that it can accomplish substantial justice. (See Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 1117, 2 WCAB Rptr. 10,052.) [In this case, the WCAB panel overruled defendants' objection to the panel's order to obtain an explanation from the treating physician for the basis of his prophylactic work restrictions.] The Traveler's Insurance Company v. Workers' Compensation Appeals Board (Steven Pietarila) 6 WCAB Rptr. 10,204

WCAB PROCEDURE– Developing the Record– It is well settled that a medical expert's opinion, which is based on an incorrect history, assumption or legal theory, is not substantial evidence that can sustain a decision. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794.) Once the Appeals Board makes the decision that the medical evidence is not substantial evidence, the Appeals Board is correct in returning the matter to the trial level to develop the record under the authority of McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10.080 (en banc). Rori Summers v. Workers' Compensation Appeals Board, Sutter Health Corporation. 6 WCAB Rptr. 10,189

WCAB PROCEDURE– Developing the Medical Record– This case involved complicated medical evidence relating to the toxicity of cumulative electromagnetic radiation exposure; it was not an abuse of discretion for the WCJ to develop the record by referring non-medical expert reports relating to the levels of exposure to the applicant's and the defense QMEs for supplemental reports. The order relating to the development of the record is not a final order subject to reconsideration. Sharesa Price v. Workers' Compensation Appeals Board, Advanced Communications Systems. 6 WCAB Rptr. 10,119

WCAB PROCEDURE– Developing the record– In developing the record, the Appeals Board may not refer the applicant to an IME. The proper procedure is to allow supplementation of the medical record through physicians who have already reported in the case. Each side may be allowed an opportunity to obtain supplemental reports, or if there are specific delineated inaccuracies or incompleteness in one or more reports, supplemental or additional reports with regard to those areas may be sought. If supplemental reports or depositions of reporting physicians do not readily cure the need for medical augmentation, outside or additional physicians may be considered. (See McDuffy v. Los Angeles County Metropolitan Transit Authority (2002) 5 WCAB Rptr. 10,080 [en banc]. Ulico Insurance Group v. Workers' Compensation Appeals Board (Richard Gonzales) 5 WCAB Rptr. 10,247

WCAB PROCEDURE– Developing the record– In this case, the WCJ determined that there was a lack of substantial evidence upon which to make findings as to the length of applicant's temporary disability, the extent of his permanent disability and which aspects of applicant's current spinal problems were due to his industrial injury. The WCJ properly ordered the parties to return to the two orthopedic surgeons who had examined the applicant to develop the record by answering ten questions posed by the WCJ. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,080 [en banc].) AMS Stafff Leasing/RKSCo for American Casualty Company of Reading v. Workers' Compensation Appeals Board (Adan Tellez) 5 WCAB Rptr. 10,246

WCAB PROCEDURE– Developing the record– Labor Code §§5701 and 5906 authorize the WCJ to further develop the record at any time during the proceedings, including obtaining additional medical evidence concerning the injury, to enable a complete adjudication of the issues consistent with due process. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 369; McClune v. Workers' Compensation Appeals Bd. (1998) 62 Cal.App.4th 1117; M/A Com-Phi v. Workers' Comp. Appeals Bd. (Sevadjian) (1998) 65 Cal.App.4th 1020.) American Insurance Company v. Workers' Compensation Appeals Board (Judith Mathat) 5 WCAB Rptr. 10,191

WCAB PROCEDURE– Developing the record– Where the medical record requires further development of the record either after trial or after submission of the case for decision, the preferred procedure is first to seek supplemental opinions from the physicians who have already reported in the case. If the supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator (AME) may be considered. Finally, if none of these options succeeds or is possible, the WCJ may then appoint a medical examiner. (See Duffie v. Los Angeles Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,080 [en banc].) American Insurance Company v. Workers' Compensation Appeals Board (Judith Mathat) 5 WCAB Rptr. 10,191

WCAB PROCEDURE– Developing the medical record– A medical expert's opinion that is based on an incorrect history, assumption or legal theory is not substantial evidence that can sustain a decision. (See Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794.) [In this case, the medical report relied on by the WCJ was incorrect and the conclusion that applicant's bipolar disorder was genetic appeared to be based on an erroneous assumption that the symptoms began years before significant stress at work.] Where neither party has presented substantial medical evidence that is necessary for complete adjudication of the issues, it is appropriate for the WCJ to order further development of the medical record. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.] Mark Batt v. Workers' Compensation Appeals Board, Grancell, Lebovitz, Stander, Marx & Barnes. 5 WCAB Rptr. 10,140

WCAB PROCEDURE– Developing the record– When the medical record requires further development of the record either after trial or after submission of the case for decision, the preferred procedure is first to seek supplemental opinions from the physicians who have already reported in the case. If the supplemental reports or depositions of the previously reporting physicians cannot or do not sufficiently develop the record, an agreed medical evaluator may be considered. Finally, if none of these succeeds or is possible, the WCJ may then appoint an independent medical examiner. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,080.) Transportation Insurance Company v. Workers' Compensation Appeals Board (Ron Van De Hey) 5 WCAB Rptr. 10,086

WCAB PROCEDURE– Duty to develop the record– Before directing the augmentation of the medical record, the WCJ must establish as a threshold matter that specific medical opinions are deficient, i.e., the opinions are inaccurate, inconsistent or incomplete. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 4 WCAB Rptr. 10,080 [en banc].) Richard Sams v. Workers' Compensation Appeals Board (Richard Sams) 5 WCAB Rptr. 10,071

WCAB PROCEDURE– Duty to develop the record– The WCJ has a duty to develop the record when the medical evidence is incomplete or unclear. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389.) (In this case neither party presented substantial medical evidence on which a decision could be based.) City of Alhambra v. Workers' Compensation Appeals Board (Derek Cook) 4 WCAB Rptr. 10,253

WCAB PROCEDURE– Duty to develop the record– When the Appeals Board identifies unanswered issues or a need for further evidence, the Board has a duty to return the matter to the trial level for further development of the record. [In this case the record reflected that the treating physician specifically attributed industrial causation to applicant's multiple sclerosis to just one incident of exposure to heat.] Gordon Smith v. Workers' Compensation Appeals Board, City of Los Angeles. 4 WCAB Rptr. 10,196

WCAB PROCEDURE– Duty to Develop the Record– After a petition for reconsideration was filed the WCJ timely set aside his decision to allow the applicant and defendant an opportunity to show case to reopen the record. In response to the WCJ's order, the parties submitted further documentary evidence in the form of supplemental medical reports which were properly considered by the WCJ in making his finding of total permanent disability. Kaiser Foundation Hospital v. Workers' Compensation Appeals Board (Villaneua Rana) 4 WCAB Rptr. 10,123

WCAB PROCEDURE– Duty to develop the record– When there is no substantial evidence from either party to base a finding, there is a duty to develop the record further. In this case the WCJ rejected the only physician's report offered at trial since it was not substantial evidence because it contained legal conclusions and not medical opinion relating to the credibility of the applicant and whether the injury arose out of and occurred in the course of employment. Nordstrom, Inc. v. Workers' Compensation Appeals Board (June Gates) 4 WCAB Rptr. 10,092

DUTY TO DEVELOP THE RECORD– Labor Code §§ 5701 & 5906– The Appeals Board may further develop the medical record where there are deficiencies, inaccuracies, inconsistencies or incompleteness in particular medical records, and where none of the medical reports adequately discuss the crucial issues. (See McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117.) Supplementation of the medical record may also be proper when necessary to protect the parties' due process rights. (See M/A Com-Phi v. Workers' Comp. Appeals Bd. (Sevadjian) (1998) 65 Cal.App.4th 1020.) [In this case it was not clear from the evidence whether any of applicant's treating physicians had reviewed records of medical problems which apparently pre-existed the applicant's industrial injury.] Fruitridge Printing and Lithograph, Inc. v. Workers' Compensation Appeals Board (Manuel Pine) 4 WCAB Rptr. 10,076

WCAB PROCEDURE– Duty to develop the record– When the Appeals Board identifies unanswered issues or a need for further evidence, the Board has a duty to return the matter to the trial level for further development of the record. In this case the record reflected that the treating physician specifically attributed industrial causation to applicant's multiple sclerosis to just one incident of exposure to heat. Was the remand to the trial level for further development proper? Gordon Smith v. Workers' Compensation Appeals Board, City of Los Angeles. 4 WCAB Rptr. 10,056

DUTY TO DEVELOP THE RECORD– Effect of discovery cutoff– Labor Code §5502(d)(3)– Evidence not disclosed or obtained after the date of the shall not be admissible unless the proponent of the evidence can demonstrate that is was not available or could not have bee discovered by the exercise of due diligence prior to the MSC. The duty to develop the record be not be used to circumvent the disclosure requirements of Labor Code §5502(d)(3). Telles Transport, Inc., v. Workers' Compensation Appeals Board (Luis Zuniga) 3 WCAB Rptr. 10,315

WCAB PROCEDURE– Duty to develop the record– Despite the discovery cut-off set forth in Labor Code §5502(d)(3), it is appropriate for a WCJ to develop the record if neither side has presented substantial evidence on which a decision could be based. Leopoldo Martinez v. Workers' Compensation Appeals Board, County of Los Angeles. 3 WCAB Rptr. 10,251

WCAB PROCEDURE– DUTY TO DEVELOP THE RECORD– The WCJ did not err in not appointing an independent medical examiner when the defendant failed to make a request for an independent medical examiner until defendant filed its petition for reconsideration. [Here the WCJ developed the record by having the applicant's treating physicians view and comment on surveillance video tape. It is preferable to have existing physicians comment and complete an inadequate record. (See Tylerv. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClure v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117.)] Highlands Insurance Group v. Workers' Compensation Appeals Board (William Lee) 3 WCAB Rptr. 10,189

WCAB PROCEDURE– Duty to develop the record– Evidence obtained after the MSC is admissible when used as rebuttal to unanticipated testimony. (See Kuykendall v. Workers Comp. Appeals Bd. (2000) 2 WCAB Rptr. 10,052.) In this case the WCJ properly excluded medical records obtained after the MSC. The applicant did not testify that he had no prior hearing loss but rather that the had a diminution of hearing and tinnitus since the injury and therefore there was not unanticipated testimony which is one of the factors required by Kuykendall. City of Rialto v .Workers Compensation Appeals Board (Marcos Palafox) 3 WCAB Rptr. 10,092

WCAB PROCEDURE– Duty to develop the record– Evidence obtained after the MSC is admissible when used as rebuttal to unanticipated testimony. (See Kuykendall v. Workers Comp. Appeals Bd. (2000) 2 WCAB Rptr. 10,052.) In this case the WCJ properly excluded medical records obtained after the MSC. The applicant did not testify that he had no prior hearing loss but rather that the had a diminution of hearing and tinnitus since the injury and therefore there was not unanticipated testimony which is one of the factors required by Kuykendall. City of Rialto v .Workers Compensation Appeals Board (Marcos Palafox) 3 WCAB Rptr. 10,092

WCAB PROCEDURE– Develop the medical evidence– In this case the Appeals Board granted reconsideration to permit the applicant to develop medical evidence supporting her claim since the AME recommended further studies to more adequately diagnose applicant's claimed injury and the medical records presented at trial were not conclusive as to her condition. (SeeTyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 CalApp.4th 1117.) Mercy General Hospital v. Workers' Compensation Appeals Board (Cheryl Smith) 3 WCAB Rptr. 10,091

WCAB PROCEDURE– DUTY TO DEVELOP THE RECORD– The WCJ may order further development of an incomplete and inadequate medical record to ensure the parties rights to due process. In this case there was an inaccuracy or incompleteness in one of the medical reports for which the WCJ properly reopened the record to allow a supplemental report of the applicant's treating chiropractor. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1020.) The Dot Printer v. Workers' Compensation Appeals Board (Richard Mitchell) 3 WCAB Rptr. 10,026

WCAB PROCEDURE– Discovery Cut-off– Labor Code §5502(d)(3)– While a mandatory settlement conference cuts off discovery, a defendant who is joined after the MSC has a due process right to a reasonable period of discovery.

WCAB PROCEDURE– Discovery Cut-off– Labor Code §5502(d)(3)– While a mandatory settlement conference cuts off discovery, a defendant who is joined after the MSC has a due process right to a reasonable period of discovery. Ramon Baldando v. Workers' Compensation Appeals Board, Danly Die. 3 WCAB Rptr. 10,060

WCAB PROCEDURE– Duty to develop the record– Supplementation of the medical record should be ordered when necessary to protect the due process rights of the parties, whether on behalf of the applicant or the defendant. (See, M/A Com/Phi v. Workers' Comp. Appeals Bd. (Sevadjian) (1998) 63 Cal.Comp.Cases 821.) Tenet/Irvine Medical Center v. Workers' Compensation Appeals Board (Judith Lyn Derose) 3 WCAB Rptr. 10,172

WCAB PROCEDCURE– DUTY TO DEVELOP THE RECORD– Supplementation of the medical record may be done where it is necessary to protect the due process rights of the parties, whether on behalf of the applicant or the denfendant. (See M/A Com-Phi v. Workers Comp. Appeals Bd. (Sevadjian) (1998) 65 Cal.App.4th 1020.) Besty Ellis-Moore v. Workers' Compensation Appeals Board, Total Renal Care, Inc. 3 WCAB Rptr. 10,157

WCAB PROCEDURE– DUTY TO DEVELOP THE RECORD– If a basis for further development of the medical record found, the preferred procedure is to, first, allow supplementation of the record through physicians who have already reported the case, i.e., each side may be allowed an opportunity to obtain supplemental reports. Alternatively, if there are specifically delineated inaccuracies or deficiencies in one or more reports, supplemental or additional reports with regard to those areas may be sought. If supplemental reports or depositions of reporting physicians do nor readily cure the need for medical augmentation, outside or additional physicians may be considered. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389. Besty Ellis-Moore v. Workers' Compensation Appeals Board, Total Renal Care, Inc. 3 WCAB Rptr. 10,157