Opinion
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JULIO MENDEZ, Applicant v. WELLS FARGO BANK NORTH AMERICA; OLD REPUBLIC INSURANCE, administered by SEDGWICK CMS, Defendants NO. ADJ10943110 Adjudication No. ADJ10943110 Workers’ Compensation Appeals Board State of California November 3, 2023Oxnard District Office
OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION
NATALIE PALUGYAI, COMMISSIONER
Lien claimant MBA Psychiatric Services, Inc. (MBA) through its non-attorney representative Innovative Medical Management, LLC, has petitioned for reconsideration, removal, and in the alternative, rescission, of the Findings of Fact and Orders issued and served by the workers' compensation administrative law judge (WCJ) in this matter on August 15, 2023. In that decision, the WCJ found that applicant sustained injury arising out of and occurring in the course of employment to his psyche, and claims injury to his internal body system as well as the condition of insomnia. The WCJ also found that lien claimant MBA Psychiatric Services, Inc. did not provide medical treatment services reasonably required to cure or relieve [applicant] from the effects of the industrial injury. The WCJ excluded from evidence lien claimant's exhibits 1-14 and 16, admitted lien claimant's exhibit 15, and ordered the lien of MBA disallowed in its entirety.
Petitioner contends that the WCJ's exclusion of their exhibits from evidence violated lien claimant's right to due process. Petitioner points to a verified affidavit of lien claimant's hearing representative, Robert Works, that was filed in the WCJ requested post-trial brief asserting that the proposed exhibits were in fact directly served upon defendant's attorney by e-mail on the date of the January 30, 2023 lien conference.
Petitioner claims that information was relevant to the issue raised by defendant as to whether or not they had been properly served with lien claimant's proposed evidence, and that the
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record requires development of this issue, as lack of service of the documents was not raised by defendant prior to the trial.
Lien claimant further asserts that the excluded evidence supports their services, that some of the services were in fact authorized by defendant, and requests that their petition for reconsideration be granted, and the matter be returned to the trial level in order to allow introduction of their evidentiary documents.
Defendant filed no response to lien claimant's petition.
The WCJ filed a Report and Recommendation on Petition for Reconsideration (Report) recommending denial of the Petition.
We have reviewed the allegations in the Petition for Reconsideration, and the contents of the Report.
Based upon our preliminary review of the record, we will grant lien claimant's Petition for Reconsideration, and we will order that this matter be referred to a WCJ or designated hearing officer of the Appeals Board for a status conference. Our order granting lien claimant's Petition for Reconsideration is not a final order, and we will order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law. Once a final decision after reconsideration is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code section 5950 et seq.
I.
Preliminarily, we note the following in our review:
On June 27, 2019, WCJ Karinneh Aslanian approved the Stipulations with Request for Award submitted by applicant Julio Mendez and defendant Wells Fargo Bank, in which applicant was found to have sustained 29% permanent partial disability with the right to future medical care for his industrial injury to the psyche. The settlement was based upon the December 13, 2018 medical reporting of Qualified Medical Evaluator (QME) Dr. Sones.
Shortly thereafter, applicant began psychiatric treatment for his injury with Dr. Gennady Musher from MBA Psychiatric Services, Inc. who filed a lien for their services.
A lien conference was held on January 30, 2023 at which time the parties completed a pretrial conference statement, attaching a list of their proposed exhibits. The issue of lack of service of lien claimants exhibits does not appear to have been raised at that time.
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At the trial of July 14, 2023, the issue of admissibility of lien claimant's exhibits was raised by defendant. The WCJ marked lien claimant's exhibits for identification, and submitted the matter, providing the parties until July 28, 2023 to file points and authorities as to whether applicant's exhibits should be admitted.
On August 15, 2023, the findings of fact and orders issued excluding most of lien claimant's exhibits and disallowing their lien in its entirety.
II.
It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term 'substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.. .It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.)
Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10787.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, 66 Cal.Comp.Cases at p. 475.) The WCJ's decision must "set[] forth clearly and concisely the reasons for the decision made on each issue, and the evidence relied on," so that "the parties, and the Board if reconsideration is sought, [can] ascertain the basis for the decision[.] . . . For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Id. at p. 476 (citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350]).)
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The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (§§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [65 Cal. Rptr. 2d 431, 62 Cal.Comp.Cases 924] ["The principle of allowing full development of the evidentiary record to enable a complete adjudication of the issues is consistent with due process in connection with workers' compensation claims."]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [72 Cal. Rptr. 2d 898, 63 Cal.Comp.Cases 261]; Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805]; Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584].)
The Appeals Board also has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.)
Labor Code section 5310 states in relevant part that: "The appeals board may appoint one or more workers' compensation administrative law judges in any proceeding, as it may deem necessary or advisable, and may refer, remove to itself, or transfer to a workers' compensation administrative law judge the proceedings on any claim...." (See also Lab. Code, §§ 123.7, 5309.)
Here, it is unclear from our preliminary review whether the existing record is sufficient to support the decision, order, and legal conclusions of the WCJ; and/or whether further development of the record may be necessary. Thus, we will order the matter to a status conference before a WCJ at the Appeals Board.
III.
Finally, we observe that under our broad grant of authority, our jurisdiction over this matter is continuing.
A grant of reconsideration has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125 Cal.App.2d 201, 203 [19 Cal.Comp.Cases 98].) Thus, once reconsideration has been granted, the Appeals Board has the full power to make new and different findings on issues presented for
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determination at the trial level, even with respect to issues not raised in the petition for reconsideration before it. (See Lab. Code, §§ 5907, 5908, 5908.5; see also Gonzales v. Industrial Acci. Com. (1958) 50 Cal. 2d 360, 364.) ["[t]here is no provision in chapter 7, dealing with proceedings for reconsideration and judicial review, limiting the time within which the commission may make its decision on reconsideration, and in the absence of a statutory authority limitation none will be implied."]; see generally Lab. Code, § 5803 ["The WCAB has continuing jurisdiction over its orders, decisions, and awards.... At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.].)
"The WCAB . . . is a constitutional court; hence, its final decisions are given res judicata effect." (Azadigian v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 372, 374 [57 Cal.Comp.Cases 391; see Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 491 [62 Cal.Rptr. 757, 432 P.2d 365]; Dakins v. Board of Pension Commissioners (1982) 134 Cal.App.3d 374, 381 [184 Cal.Rptr. 576]; Solari v. Atlas-Universal Service, Inc. (1963) 215 Cal.App.2d 587, 593 [30 Cal.Rptr. 407].) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534-535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]), or determines a "threshold" issue that is fundamental to the claim for benefits. Interlocutory procedural or evidentiary decisions, entered in the midst of the workers' compensation proceedings, are not considered "final" orders. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1070, 1075 [65 Cal.Comp.Cases 650].) ["interim orders, which do not decide a threshold issue, such as intermediate procedural or evidentiary decisions, are not 'final' "]; Rymer, supra, at p. 1180 ["[t]he term ['final'] does not include intermediate procedural orders or discovery orders"]; Kramer, supra, at p. 45 ["[t]he term ['final'] does not include intermediate procedural orders"].)
Labor Code section 5901 states in relevant part that:
"No cause of action arising out of any final order, decision or award made and filed by the appeals board or a workers' compensation judge shall accrue in any court to any person until and unless the appeals board on its own motion sets aside the final order, decision, or award and removes the proceeding to itself or
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if the person files a petition for reconsideration, and the reconsideration is granted or denied. ..."
Thus, this is not a final decision on the merits of the Petition for Reconsideration, and we will order that issuance of the final decision after reconsideration is deferred. Once a final decision is issued by the Appeals Board, any aggrieved person may timely seek a writ of review pursuant to Labor Code sections 5950 et seq.
III.
Accordingly, we grant lien claimant's Petition for Reconsideration, order that this matter be set for a status conference, and order that a final decision after reconsideration is deferred pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.
For the foregoing reasons,
IT IS ORDERED that lien claimant's Petition for Reconsideration of the Findings of Fact and Orders issued on August 15, 2023 by a workers' compensation administrative law judge is GRANTED.
IT IS FURTHER ORDERED that this matter will be set for a Status Conference with a workers' compensation administrative law judge or assigned designee of the Appeals Board. Notice of date, time, and format of the conference will be served separately, to be heard in the Lifesize electronic platform, in lieu of an in person appearance at the San Francisco office of the Appeals Board.
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IT IS FURTHER ORDERED that a final decision after reconsideration is DEFERRED pending further review of the merits of the Petition for Reconsideration and further consideration of the entire record in light of the applicable statutory and decisional law.
I CONCUR, JOSEPH V. CAPURRO, COMMISSIONER, KATHERINE A. ZALEWSKI, CHAIR