WCAB Asks Court for Second Chance


Sacramento, CA - Theodore Davis filed two applications for adjudication of his workers’ compensation claim alleging he contracted prostate cancer due to both specific industrial exposure and as a cumulative trauma injury through March 31, 2014, while performing his duties as a firefighter for the City of Modesto.

The parties selected Thomas Allems, M.D., as the panel Qualified Medical Examiner (QME) during the discovery process. Dr. Allems produced two medical-legal reports concluding Davis’s cancer was not related to his employment.

At his own expense, Davis hired Gerald Besses, M.D., to review Dr. Allems’s reports and to evaluate him regarding the causation of his prostate cancer. Davis forwarded Dr. Besses’ reporting to Dr. Allems with a request to prepare a supplemental report addressing Dr. Besses’ evaluation, but Modesto objected and filed a declaration of readiness to proceed to a hearing, claiming the request was an attempt to violate the workers’ compensation discovery process.

The WCJ concluded Dr. Besses’ report was not admissible because it was not obtained pursuant to section 4060 (Batten v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1009 (Batten)), but that the report may nevertheless be reviewed and commented on by Dr. Allems as the QME pursuant to Labor Code 4605.

LC 4605 provides that "Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion."

Modesto petitioned the WCAB for reconsideration. In a July 15, 2016, opinion, the WCAB treated the petition as one for removal, granted removal, dismissed reconsideration, and rescinded the WCJ’s decision concluding that Dr. Besses’ report was  not reviewable by the QME

Davis filed a petition for writ of review. In addition to an answer from Modesto, the WCAB filed a letter brief stating it had reviewed the petition and determined it failed to address Labor Code section 4605 in its October 3, 2016, decision. Accordingly, the WCAB asked the court to grant the petition for review, annul the WCAB’s decision, and remand to the WCAB for further proceedings. 

The Court of Appeal granted a writ of review in the unpublished decision of Davis v WCAB, and the City of Modesto. The WCAB’s October 3, 2016, Opinion and Orders Denying Petition for Reconsideration and Dismissing Petition for Removal was annulled. The matter was remanded to the WCAB to conduct any further proceedings it deems appropriate.

"Given the WCAB’s admission it did not consider section 4605, which is also apparent from the face of its October 3, 2016, opinion, we conclude the WCAB’s decision fails to 'state the evidence relied upon and specify in detail the reasons for the decision' as required under section 5908.5. 'The purpose of this section requiring the appeals board to specify in detail the reasons for its decision is to assist the reviewing court to ascertain principles relied upon by the lower tribunal to help avoid careless or arbitrary action and to make the right of appeal more meaningful.' (Burbank Studios v. Workers’ Comp. Appeals Bd. (1982) 134 Cal.App.3d 929, 936.) The WCAB’s failure to set forth its reasoning in adequate detail constitutes a sufficient basis to annul the decision and remand for a statement of reasons." Read More...

Source: WorkCompAcademy.com 

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