Where Medical Record Is Inadequate You May Develop The Record Further

This decision is an Unpublished Opinion from the Court of Appeal but cites a wealth of citeable cases involving developing the record.

This case involves a managing partner of a workers’ compensation defense firm who filed a workers’ compensation claim for psychiatric injury against his law firm. The claim was denied by the firm.

The applicant was hired as an attorney in 1985. In 1991 the applicant became a managing partner. In 1995 the applicant was asked to step down because of deteriorating performance. The applicant was diagnosed with bipolar disorder Type II. At trial the applicant testified to the stress of having to bill many hours and having to fire two profitable attorneys. One attorney brought a wrongful termination suit in which the applicant had to testify and was unable to do so, causing the applicant to cry. The applicant obtained a medical opinion that found the injury industrial. The defendant obtained a medical opinion that found the injury non industrial. The Workers’ Compensation Judge (WCJ) found the injury non industrial. The applicant filed a petition for reconsideration with the Workers’ Compensation Appeals Board (WCAB) which was denied. The present decision followed.

On review the appellate court is bound by the decision of the WCAB if there is substantial evidence. The court is not bound to accept the unreasonable, arbitrary findings considering the entire record.
A medical opinion for the WCJ to rely must be based on relevant facts and not an incorrect legal theory. A medical opinion not based on adequate history, surmise, speculation, or conjecture will not be substantial evidence. Here the appellate court indicated neither report was substantial evidence.
When the record is not adequate the WCJ or the WCAB must develop the record pursuant to Tyler v. WCAB (1997) 56 Cal. App. 4th 389. In this case the appellate court remanded for the WCJ and WCAB to further develop the record. The opinion makes for interesting reading.

Case: Batt v. WCAB;Grancell, Lebovitz

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

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