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Evidence and Procedure/Interpreters

Val v. Southern California Edison (BPD) (83 CCC 584):

The WCJ found that applicant sustained an injury arising out of and occurring in the course of his employment to his right shoulder, left knee, right knee, lumbar spine and right elbow but did not sustain a psychiatric injury.

Applicant filed a petition for reconsideration.

On August 20, 2012 applicant filed an Application for Adjudication of Claim alleging a specific injury on May 30, 2012 to his lower extremity, back, and chest.

On February 20, 2013, applicant filed an Amended Application for Adjudication of Claim adding the following body parts: knees, right arm, right shoulder and right elbow.

On July 15, 2013, applicant filed another Amended application for adjudication adding psych as a body part.

On July 15, 2013, applicant filed an Amended Application for Adjudication of Claim alleging a continuous trauma to the knees and the psyche. Although the applicant labeled this application for adjudication as amended, the cumulative trauma claim was assigned to case number.

On July 24, 2014, applicant filed another Amended Application for Adjudication adding both hands, right pinky left thumb and right ankle as additional body parts the specific injury claim.

On July 7, 2014 applicant filed another Amended Application for Adjudication adding both knees as parts of the body to the specific injury claim.

On April 20, 2015 applicant filed another Amended Application for Adjudication adding his left shoulders additional body parts the specific injury claim.

Applicant was evaluated by a panel Qualified Medical Evaluator in psychiatry who issued two reports.

The WCAB indicated that Labor Code 5402 (b) provides that if liability is not rejected within 90 days after the date the claim form is filed under section 5401, the injury shall be presumed compensable under this division. The presumption of the subdivision is rebuttable only by evidence discovered subsequent to the 90 day-period

The WCAB cited the case of Clark v. WCAB (66 CCC 269) (W/D) for the proposition that Labor Code §5402 applies to claims of injury, not to parts of the body claim to be injured as a result of the industrial injury. The WCAB explained in that case just as a claim which is amended after the passing of the statute of limitations to include injury to a new part of the body relates back to the date of the original filing, so does an amendment adding a new part of the body to the claim form relate back for purposes of §5402. Therefore, they concluded that applicant’s amended claim form to alleging new parts of the body did not trigger new period for rejecting a claim of injury.

In the case of Puc-Perez v WCAB (66 CCC 269) (W/D) the WCAB concluded that the presumption of compensability under Labor Code 5402 only applies when a defendant seeks to deny industrial injury entirely and has failed to deny liability within the relevant period of time. However, when the original claim of injury has been accepted as industrial, the presumption of compensability does not apply. (Burmaster v. WCAB, 62 CCC 792).

In this case defendant admitted the orthopedic injuries within the statutory 90-day period and that they paid temporary disability for two years. Yet the WCJ in his report states that it is undisputed that the orthopedic injuries were denied. Furthermore, the record does not contain any evidence regarding whether defendant admitted her to hide the allocations of the original Application.

However, the the Appeals Board observed that the issue at trial included injury AOE/COE and parts of the body which suggests the orthopedic injuries were disputed. Despite the lack of evidence to whether defendant admitted or denied the orthopedic claims, the Appeals Board concluded that an amended claim to add a new body part does not trigger a new 90-day period for defendant to reject the claim.

Had defendant denied the orthopedic claims, an amendment to add a psychiatric claim would not trigger a new 90-day period for defendant to respond. Had defendant accepted the orthopedic claims, the presumption of compensability would not apply. Had defendant failed to act within the first 90-day period following the original Application for Adjudication, the presumption of compensability would apply as to the orthopedic injuries but not as to the psychiatric allegations.

The psyche injury was not alleged in the original Application and due process requires defendants to have notice of what it is forfeiting by failing to respond.

Therefore, the Appeals Board concluded that the presumption of compensability found in Labor Code §5402 (b) does not apply to the psychiatric claim.

The WCAB then went on to discuss the issue of whether the applicant met the higher threshold of compensability for the psychiatric injury pursuant to Labor Code §3208.3 (b).

In this case the Qualified Medical Evaluator found that 60% of applicant’s claim was caused by industrial factors and 40% nonindustrial factors. From the 60% caused by industrial factors the physician concluded that 40% was caused by alleged personnel actions of being terminated without appropriate cause and the left over 20% was caused by a psychiatric reaction to the orthopedic injuries and the psychiatric reactions to the cumulative and specific orthopedic injuries and their physical sequelae. The Qualified Medical Evaluator concluded that the alleged personnel actions met the substantial cause threshold.

The Qualified Medical Evaluator deferred to the trier fact the following Rolda questions (1) whether the alleged psychiatric injury involves actual events of employment, a factual/legal determination and (2) if so, whether any of the actual employment events were personnel actions and were lawful, nondiscriminatory, and in good faith, a factual/legal determination.

Apparently in this case the WCJ believed that the Qualified Medical Evaluator was deferring determination of medical evidence to WCJ.

The Appeals Board indicated the Qualified Medical Evaluator clearly opined that actual events of employment were the predominant cause, greater than 50%, of all causes of injury to the psyche and that the alleged personnel actions met the threshold of substantial cause.

What the Qualified Medical Evaluator was deferring to the WCJ was the factual/legal determinations of whether the alleged psychiatric injury involves actual employment events and whether any of the actual employment events were personnel actions that were wrongful, nondiscriminatory and good faith.

In the Rolda case the Workers Compensation Appeals Board specifically stated that these factual/legal issues are for the WCJ to determine. Accordingly, the WCAB amended the findings and award, deferred the issue of whether applicant sustained an industrial psyche injury and returned the matter to the trial level to determine the factual/legal issues discussed in the case and the multi-level analysis as set forth in Rolda.


Sequeira De Bustos v. WCAB (Luisa) (BPD) (83 CCC 378):

Applicant sustained an admitted industrial injury to his lumbar spine and claimed injury to the cervical spine on November 25, 2010.

Applicant was evaluated by three primary treating physicians and a panel Qualified Medical Evaluator.

The three primary treating physicians never issued reports addressing applicant’s permanent disability.

The Qualified Medical Evaluator found the applicant had reached MMI and set forth factors of permanent disability in a report dated March 10, 2014.

Defendant filed a Declaration of Readiness to proceed and the matter proceeded to trial on the issue of permanent disability.

The WCJ issued a decision concluding the applicant did not suffer an injury to her cervical spine and the applicant’s lumbar condition was permanent and stationary and awarded 20% permanent disability.

Applicant filed a Petition for Reconsideration.

The Worker’s Compensation Appeals Board found that the Declaration of Readiness to Proceed complied with Labor Code §4061(i). The Appeals Board relied on the language which the states no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a Declaration of Readiness to Proceed unless there has been a medical evaluation by a treating physician and by either an agreed or qualified medical evaluator.

The WCAB found that that Labor Code §4061(i) does not require that the evaluations all find the injured worker to be permanent and stationary or that the evaluations address permanent disability.

A Declaration of Readiness to proceed is the first step to trial.

While medical evaluations must address permanent disability, and be substantial evidence to support a WCJ’s decision on the issue of permanent disability, every reporting physician does not have to agree that the applicant’s MMI before a case can go to trial.

In this case, the PQME provided substantial medical evidence sufficient to support an award of permanent disability. The primary treating physician did not find the applicant and reached MMI. The WCJ correctly relied on the PQME to issue the decision.

Applicant filed a Petition for Writ of Review asserting that the Labor Code requires the treating physician and the AME or QME to determine that applicant’s MMI before making a determination regarding the existence and extent of permanent disability.

The writ was denied.


Abea V. Parco Inc. (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 302, 82 CCC 302):

The WCJ set the matter for trial on the issue of injury AOE/COE over defendant’s objection. Defendant objected on grounds that they had not yet completed discovery, including depositions of the applicant and the panel qualified medical evaluator.

The defendant filed a petition for removal.

The WCAB granted removal and ordered the matter off calendar. The WCAB held that the WCJ erroneously found the matter was right for trial without the need for further discovery because defendants had denied injury AOE/COE within the 90-day period of Labor Code 5402.

The WCAB held that although the presumption of compensability and Labor Code §5402 precludes defendant from disputing liability for injury using evidence that could have been obtained with the exercise of reasonable diligence within the initial 90-day period, defendants still have a due process right to complete discovery.

In this case where the applicant would not cooperate in discovery and defendant timely objected to the panel Qualified Medical Evaluator’s report and timely notice the evaluator’s deposition before applicant filed a Declaration of Readiness to Proceed, the WCJ setting the matter for trial was significantly prejudicial to defendant and should not have occurred as setting the case for trial violated their due process rights.


Camacho v. Pirate Staffing (BPD) (2017 Ca. Wrk. Comp. P.D. LEXIS 531) (83 CCC 661)

The applicant’s attorney advised the applicant to assert his Fifth Amendment privilege against self-incrimination with respect to questioning about his Social Security number.

The WCJ at trial drew an adverse inference because the applicant had asserted the privilege.

The WCAB ruled that under CCR §10400 (h) disclosure of an applicant’s Social Security number is voluntary, not mandatory.

The failure of an applicant to provide a Socialist Security number will not have any adverse consequences.

The WCAB concluded that a WCJ may not compel an applicant to testify in violation of his Fifth Amendment right and no adverse inference may be drawn from the exercise of it.

The WCAB further found that working under different Social Security numbers did not reflect on applicant’s credibility or legitimacy of his claim.

Sierra v. Bowers drywall (BPD) (LEXIS)

The parties were present at the hearing and represented by counsel.

The need for applicant’s services arose at the hearing.

The WCJ ordered the interpreter paid for the services at that hearing.

Defendant filed a Petition for Reconsideration.

The Appeals Board denied defendant’s Petition for Reconsideration. The defendant argued the order violated Appeals Board Rule 10451.3 (e), because a petition for costs cannot be filed until at least 60 days after written demand for the cost is been served defendant.

The WCAB cited Appeals Board Rule 10451.3 (a) which provides that a Petition for Costs is a Petition seeking reimbursement of an expense or payment for services that is not allowed was a lien against compensation under Labor Code §4903.

A Petition for Costs may be filed only by: (1) an employee or the defendant of deceased employee, (2) a defendant, or (3) an interpreter for services other than those rendered at a medical treatment appointment for medical legal examination.

Appeals Board Rule 10451.3 (d) provides a Petition for Costs filed by an interpreter shall contain, in addition to the general factual allegations of the petition: (1) a statement of the names of any interpreters perform the services; (2) a statement that the services were actually performed; and (3) either: (A) a statement of the certification number of the interpreter; or (B) if not certified, statement that specifies why certified interpreter was not used and that sets forth the qualifications of the interpreter, including any qualifications for a non-certified interpreter established by the rules of the Administrative Director.

Appeals Board Rule 10451.3 (e) a Petition for Costs will not be filed and served until 60 days after a written demand for the costs has been served on the defendant or the person or entity for the cost of claim. The petition shall append: (1) a copy of the written demand, together with a copy of its proof of service; and (2) a copy of the response, if any. A petition that fails to comply with these provisions may be dismissed.

The Appeals Board, after citing the above rule, indicated they distinguish the facts of this case from from situations Rule 10451.3 was intended to address.

One such example involves interpretation costs incurred during the deposition. In such a situation, the interpreter must make a written demand for payment and Rule 10451.3 allows the party 60 days in which to formally resolve the issue. Absent a legitimate dispute, however, defendant is liable for such interpretation costs pursuant to Labor Code §5710 (b) (5) and Administrative Dir. Rule 9795.3 (a) (5) and should pay that cost without required interpreter to file a Petition for Costs.

If, on the other hand, legitimate dispute exists, the interpreter will file a Petition for Costs and the WCJ will acute indicate that dispute.

The Appeals Board indicated in this case that the parties, including defendant, were present and represented by counsel at the hearing before the WCJ when the applicant’s need for interpreter services arose. Because the situation occurred during the hearing, the WCJ had an opportunity to consider and assess the need for the interpretation service, the qualifications of the interpreter, the services rendered, the rate requested, and any objection raised by defendant.

As stated by the WCJ in the report, there was no objection raised by defendant at the hearing regarding the need for the interpretation services, qualifications of the interpreter, services rendered or the rate requested. Moreover, defendant did not raise any such objection on reconsideration.

The WCAB was also unpersuaded that the order violated §5313 because it is an unsupported order with no record. The order itself states the applicant was present and required the use of an interpreter. The order further provided that interpreter services were requested by applicant’s attorney, the requested fee for the WCAB appearances is $165, the Tax ID number 604464092, certification number is 30112 and interpreter declares under penalty of perjury that by signing this form that she/he is the interpreter that performed the services at the above-mentioned hearing.

The order was signed by the interpreter.

Thus, the order contains the facts relied upon by the WCJ and issuing his order.

The WCAB ordered the Petition for Reconsideration be denied