Additional Evidence Okay When There Is A Conflict

Sometimes it seems an issue has to be addressed repeatedly for the workers’ compensation community to understand. Another appellate court had to tackle the issue of whether a workers’ compensation judge (WCJ) could order additional evidence by way of an independent medical exam.

The applicant worked for his employer from 1991 to 1996. The applicant did not miss one day from work when the applicant filed a cumulative trauma to his leg and hip. The employer denied the claim on the grounds of a pre-existing condition which rendered the applicant’s condition non-industrial.  The WCJ found the condition nonindustrial. However, the WCJ pinioned that an independent medical examiner would be appropriate in this case, however, the present procedures do not allow for the appointment of one.

In a previous issue of this newsletter the case of Tyler v. WCAB was discussed.  In the newsletter it was suggested that the WCAB would now have the opportunity to refer cases out to independent medical examiners. Many practioneers and WCJ’s believed Tyler was an isolated case based on its peculiar facts. In fact in this case it was argued that Tyler was not binding because the WCJ found neither doctor credible. It was further argued that in McClune that the WCJ did not reject the evidence but merely found the applicant did not sustain an injury.

This appellate court rejected the distinction. “Indeed, as Tyler acknowledged, the ‘ principle of allowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers’ compensation claims-.’”

It was further argued that appointment of an independent medical examiner was inappropriate at this stage of the proceedings, or after discovery cut-off and trial. The appellate court was not having any part of this argument either. The court cited a pre-1989 amendment case as still good authority. Citing Zozaya v. WCAB,”…{Accordingly, where the medical evidence is in conflict, WCAB does not exceed its statutory powers when it grants reconsideration to direct the taking of additional evidence.”

In 1997, in the Tyler newsletter, the editor gave the advice that it may be prudent in certain cases that when there is a conflict in the medical evidence it may behoove both parties to go to an agreed medical examiner. Otherwise, you may find yourself in a situation where you go through a whole trial to have the WCJ end up referring the applicant out to doctor without either party having a choice in the determination of that doctor. It seems choosing an agreed medical examiner is the more prudent choice.

Case: McClune V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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