Case on substantial evidence and duty to develop the record by the WCAB

This is a non published appellate court case

This is a very significant case for workers’ compensation principles.

The applicant had an admitted injury to his back. He also claimed an injury to his psyche in the form of a sleep disorder. The applicant saw an agreed medical evaluator (AME) in orthopedics. The AME found the applicant permanent and stationary and apportioned 50 percent of the injury to nonindustrial preexisting causes.

The applicant also saw a qualified medical examiner in rheumatology who could not make a determination on causation. The applicant also saw a secondary treating physician in psychology. This doctor found the applicant temporarily disabled but deferred on apportionment.

The case went to trial and the Workers’ Compensation Judge (WCJ) found that the applicant sustained injury to his back and psyche in the form of a sleep disorder. The defendant filed a petition for reconsideration and the Workers’ Compensation Appeals Board ( WCAB) denied reconsideration.
The appeals court indicated that psychiatric cases require that a psychiatric case requires that causation must be greater than 50 percent. In this case the psychologist report was not substantial evidence on causation because it deferred on causation and apportionment. The court indicated that the WCAB had a duty to develop the record. The WCAB can take additional evidence. The case was remanded.

Case: Radiator USA v. WCAB

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

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