Duty To Develop Record Even After Conference

This case is not published and therefore, not citable in judicial actions. However, the cases it cites and relies on are citable. Therefore, the proposition is a valid argument.

The applicant had and admitted specific injury and cumulative trauma.  The parties agreed on three agreed medical examiners (AME’s). There was an AME for orthopedic, voice, and psyche. The psychiatrist wrote supplemental reports over time and concluded that the applicant’s condition could improve or worsen.  The psychiatrist indicated that the applicant needed continuous treatment.

The employer filed a declaration of readiness to proceed (DOR). The matter was set for a mandatory settlement conference (MSC). At the M S C the applicant objected to the case being set for trial because the applicant was requesting vocational rehabilitation. The applicant was contending that if the applicant was incapable of being retrained, then under the theory enunciated in LeBoef v WCAB, 48 CCC 587, the applicant’s permanent disability may be effected by the failure to be retrained. The workers’ compensation judge (WCJ) set the case for trial due to the aging of the medicals.

At trial the parties stipulated that the applicant had requested VR. The case was submitted and the WCJ awarded the applicant 83-3/4 percent permanent disability based on the opinion of the AME’s.

The applicant petitioned for reconsideration and to stay the permanent disability award on the basis of newly discovered evidence. The applicant relied on Labor Code section 5903 (d) for the proposition that a new medical report that was being obtained after the trial would change the applicant’s permanent disability award.  The WCJ indicated that the applicant had not objected to the DOR or raised the LeBoef argument at trial. The WCAB adopted the WCJ’s findings in denying reconsideration. The applicant filed for review contending that the WCAB should apply LeBoef and Tyler v.  WCAB, 62 CCC 924. In Tyler the appellate court determined that the WCAB may develop the record at any time in the proceedings.

The appellate court in this case looked at the case law related vocational rehabilitation and permanent disability. The appellate court stated that the new medical report was considered new evidence by the WCJ and therefore, the WCJ had a duty to develop the record under the Tyler decision.

This case creates another loop hole in the doctrine that discovery is cut off at the MSC. It can work equally for both sides. Tyler and its progeny have now created many loopholes in the legislation that was supposed to end discovery at the MSC.

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

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

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