Happy Monday, dear readers!

You know, your humble blogger is truly blessed with a wonderful readership.  After my post some time ago about the matter of Lopez v. Prell Restaurant Group, in which the WCAB ordered the trial judge to develop the record on an AOE/COE issue. 

Well, since then, your humble blogger has been graced by several e-mails and messages: some venting with frustration and some offering case law in answer.  A couple even provided relevant case law to counter such a move.

Well, I thought, I might share some of that authority with my beloved readers.  After all, sharing is caring, and who cares more than your humble blogger? So buckle in, dear readers, this is going to be a long one!

But first, a bit of background: as articulated in the Lopez opinion, even if the parties agree to close discovery and submit a matter for decision, the WCAB can order the record “developed” if, based on the current record, it cannot meet its obligation to render decisions “supported by substantial evidence in light of the entire record” as required by Labor Code section 5952(d).   This is also based on LC 5701 and also LC 5906.

For example, if the issue is extent of permanent disability, and the record contains no medical reports that constitute substantial medical evidence, the WCAB might determine that development of the record is necessary to obtain a report that does constitute substantial medical evidence and upon which a ruling can be made.

But what about in cases of AOE/COE dispute?  As argued in the earlier post, if there is no substantial medical evidence in the record, and compensability is contested, doesn’t an order to develop the record shift the burden  onto the defense to prove that the injury is non-industrial, rather than placing the burden on applicant to prove that it is?

One panel decision, Kabala v. City of Alhambra Fire Department, issued in 2010, dealt with a similar issue.  The trial judge had issued an Order Vacating Submission and Disposition to Complete the Medical Record, ordering the parties to either depose the QME or agree to an AME.  Defendant sought removal, arguing that since “applicant took no steps to complete the record prior to trial,” discovery should close as per Labor Code section 5502.  One of the issues for trial was, of course, AOE/COE. 

The panel granted removal, reasoning that “[a]pplicant holds the affirmative of proving that the injury arose out of and occurred in the course of his employment, so he has the burden of proof as to that issue.” 

Gloria Rivas v. Posada Whittier, another 2010 panel decision, likewise reversed a WCJ for reopening the record of development: “We concluded that it was error to reopen the record for additional discovery after applicant had stipulated that she was ready to try the issue of injury to her psyche… We therefore decided the issue of injury to the psyche adversely to applicant based upon her failure to meet her burden of proof.”

In Rivas, applicant’s argument that discovery should remain open because the trial was set from a priority conference rather than a mandatory settlement conference was not persuasive: “contrary to her understanding of workers’ compensation procedure, once a party stipulates to being prepared for trial, discovery is closed regardless whether the case came up on the regular calendar or the priority calendar.”

A very big thanks to S.G. for sending in those opinions!

Nor are these opinions confined to the panels, which everyone but the immediate parties in a case appear free to disregard as it suits them.  The Court of Appeal in San Bernardino Community Hospital v. WCAB/McKernan (1999) reached a similar conclusion.  The facts in this matter were very close to the panel decisions cited above: applicant went to trial on a denied claim and then sought an order to develop the record when she could not carry her burden of proof.

After failing to appear for her trial, applicant attended the continued trial date and wanted to offer testimony from a witness not previously disclosed and enter reports not previously listed.  The trial judge allowed this over defendant’s objection.  The WCJ found the injury compensable and the appeals board denied reconsideration.  The Court of Appeal, however, reversed.

Citing Labor Code section 5502(d)(3), the COA reasoned that relying on section 5701 or 5906 to negate the close of discovery, or to all discovery to reopen so long as there was no “prejudice” to defendant (by allowing defendant time to obtain rebuttal) would require a reading of 5502(d)(3) as “toothless” and without meaning.

The Court of Appeals decision in Tellers Transport v. WCAB/Zuniga reached the same conclusion in 2001, reversing the WCAB’s order to admit reports not listed on the pre-trial conference statement after the trial Judge issue a “take nothing” order.  Discovery remained closed and applicant failed to carry the burden of proof on AOE/COE. 

An equally big thanks to R.C. for sending those cases in!

The authority is there and, at least to some extent, should be binding on the WCAB in light of the Court of Appeal decisions.  There should be no basis to “develop the record” on an AOE/COE trial.  It is applicant’s burden to prove by a preponderance of the evidence that there is a compensable industrial injury.  As the fishermen in Odessa, Ukraine say: one must fish or cut bait.  Applicants should either “develop the record” during the discovery phase and either settle or proceed to trial.  At least, that’s your humble blogger’s take on it.