Court of Appeal and WCAB En Banc Decisions

Published decisions of the Courts of Appeal and En Banc Decisions of the WCAB are citable and binding precedent for all WCJs and WCAB panels.

Temporary Disability & Penalties

Coca-Cola v. WCAB (Espinoza) (2011) 76 Cal. Comp. Cases , Court of Appeal, First Appellate District, Division Three.

After her injury, applicant treated in the employer’s MPN for three weeks. She then retained counsel and her attorney referred her to a non-MPN doctor. The matter came on for trial on the issue of her claim for TD from the date of injury and continuing. Applicant testified that she changed doctors because the treatment provided by the MPN doctor was not helping her. The WCJ deferred the network control issue on the ground that it was not related to applicant’s TD claim. He rejected the defendant’s argument that the reports of the non-MPN doctor were inadmissible and awarded TD in accordance with those reports, less payment to EDD. The defendant sought reconsideration, insisting that the reports on which the decision was based were inadmissible and there was therefore no substantial evidence of TD.

Although the network control dispute had not yet been resolved, the WCAB majority assumed for the purpose of its discussion that the MPN was validly established and properly noticed. Addressing the admissibility issue, the majority opinion noted that applicant had a number of opportunities to challenge any treatment, diagnosis, or lack thereof with which she disagreed and to treat with another doctor within the MPN. She could have simply selected a different doctor within the MPN or, in connection with a dispute concerning diagnosis or treatment, she could have pursued the second and third opinion procedure as well as independent medical review, which might have resulted in her ability to select a doctor outside of the MPN.

In fact, for disputed diagnosis and treatment issues, the majority noted that Labor Code §4616.6 precludes the admissibility of non-MPN reports. The corresponding regulation, 8 CCR §9785(b)(3) prohibits the employee from designating a new PTP until the dispute has been resolved. Thus, in this situation, a non MPN treater does not meet the legal definition of the term, “primary treating physician” and the designation of PTP remains with the MPN doctor.

The Board majority also cited the case of Tenet/Centinela Hospital Medical Center v. WCAB (Rushing) (2000) 65 CCC 477 in which the Court of Appeal held that after the applicant was discharged from care by her PTP, without need for further doctor-involved treatment, she was not entitled to select a new PTP without first submitting the issue of treatment to an AME or QME. Likewise, applicant should have either changed doctors within the MPN and/or sought an opinion from a second or third MPN physician. For disputes over TD and PD, neither side is allowed to simply pick a doctor of their choice to resolve the dispute. Rather, they must follow with the AME/PQME procedure under §§4061 and 4062.

The majority opinion then turned to a discussion of Labor Code §§4605 and 5703(a). Section 4605 is the statute that states that an employee can “provide, at his own expense, a consulting or any attending physicians whom he desires.” In some panel decisions, it has been found that applicants have the right to treat with non-MPN doctors at their own expense although with the result that the defendant has no liability for the out of network treatment. Commenting on the fact that this section does not address the issue of admissibility, the Board majority found that it cannot be used to justify the admission of unauthorized non-MPN medical reports. Furthermore, although §5703(a) allows the WCAB to receive treatment reports as evidence, the language is discretionary and not mandatory. The majority did not believe that discretion should be used to admit the reports of out of network doctors.

Finally, the majority addressed the concern expressed in one of the dissenting opinions that the decision deprives injured workers of compensation, responding as follows:

“On the contrary, it is those applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and challenge diagnosis or treatment determinations within the MPN, and to dispute temporary or permanent disability opinions under sections 4061 and 4062 outside the MPN, who have removed themselves from the benefits provided by the Labor Code.”

The opinion concluded with the pronouncement that where there has been no neglect or refusal to provide reasonable medical treatment, a defendant is not liable for the medical treatment procured outside the MPN.  Since such reports are inadmissible, the majority could find no reason for imposing liability for their cost on the defendant.

The Valdez case was remanded to the trial level to determine the issue of whether the defendant had network control in which event the applicant should comply with the applicable MPN provisions and resolve the TD dispute through the AME/PQME procedure. If the defendant does not have network control, then the applicant may continue to treat outside of the MPN until the defendant is in compliance with the MPN regulations.

If the defendant does not have network control, the WCJ may award TD provided the reports constitute substantial evidence, or “may allow defendant to object to the report in question under section 4062(a) should it be determined under the circumstances of this case that ‘good cause’ exists to extend the time limits of that section.”

Two Commissioners wrote separate concurring and dissenting opinions in which they respectively expressed the opinions that under certain circumstances WCJs should have the discretion to admit non-MPN reports, and that non-MPN reports should be admissible on indemnity issues, although not on issues of diagnosis and treatment.

Unpublished Court of Appeal Decisions

Unpublished decisions of the Court of Appeal may not be cited for any purpose, but the legal reasoning employed may be valuable in cases with similar facts.

Petitions to Reopen

State Compensation Insurance Fund  v. WCAB (Romero) (2011) 76 Cal. Comp. Cases 399, Court of Appeal, Second Appellate District, Division Seven, unpublished opinion.

In 2002, Mr. Romero suffered a stroke that he claimed was related to his job. He was evaluated by Dr. Brautbar who opined that the stroke resulted from a type of bacterial infection that was most commonly caused by dental work but could result from an open wound. The doctor could find no evidence in the record of recent dental work and the applicant’s wife denied that there had been any. However, the applicant had hit his finger with a hammer at work, causing the nail to come off. The doctor concluded that he could not “establish or rule out causation” but it was clear that Mr. Romero was totally disabled.

The parties entered into Stipulations With Request for Award whereby it was agreed that applicant sustained an industrial injury that caused permanent disability of 35 percent as well as need for future medical treatment. After the award became final, the applicant filed a Petition to Reopen alleging that his disability had increased. He was referred to an AME, Dr. Markovitz, who reported that “an improper review of medical records and an improper interpretation of the nature of the organism has led to false conclusions in this case.” As it turned out, the medical records that pre-existed the original award clearly documented the fact that the applicant had undergone a dental procedure two or three weeks before his stroke. The AME found that the dental procedure was the real cause of the infection that led to the stroke, and not the finger injury. Therefore the stroke was not industrial. As for the question of increased disability, the doctor was at a loss to understand the basis for the 35 percent award because Mr. Romero had been totally disabled ever since his stroke.

More than five years after the date of injury, the defendant filed a Petition to Reopen to reduce the award. The WCJ denied the defendant’s petition and awarded the applicant’s attorney $10,000 in attorney fees pursuant to Labor Code §4607, which authorizes an award of fees for successfully resisting a petition to terminate an award of medical treatment. The WCJ also granted the applicant’s Petition to Reopen and increased the award to 100 percent. The WCAB denied reconsideration, adopting the report of the WCJ and offering the comment that even if the defendant’s petition had been timely filed, the stipulation to industrial causation was res judicata and couldn’t be disturbed.

The Court of Appeal agreed with the WCAB concerning the denial of the defendant’s petition as untimely, observing that Labor Code §5804 limits the continuing jurisdiction of the WCAB to a period of five years from the date of injury. A Petition to Reopen to reduce may be filed beyond the five years if it is within 30 days of the filing of a timely Petition to Reopen to increase the disability but the defendant missed this deadline as well. The Court also affirmed the award of attorney fees.

However, the Court found no “new and further disability” to support a 100 percent award pursuant to Labor Code §5410 since Dr. Brautbar found total disability prior to the original award. Likewise, the WCAB’s continuing jurisdiction under §§5803 and 5804 to reopen a case and to amend an award upon a showing of good cause did not provide a proper basis to either increase or decrease applicant’s award. His permanent total disability was known at the time of the stipulated award. Dr. Markovitz’s opinion did not constitute newly discovered evidence unavailable at the time of the original Findings and Award. Furthermore, the Court could not find any mistake of fact, fraud or other circumstance amounting to good cause to amend the original award.

Permanent Disability

Nittel  v. WCAB (2011) 76 Cal. Comp. Cases 545, Court of Appeal, Fourth Appellate District, Division Three, unpublished opinion.

In 2007, applicant filed a claim for workers’ compensation benefits alleging a cumulative trauma injury during the period 1997 to 2002, to multiple parts of his body, while working as a professional hockey player for the San Jose Sharks. The matter proceeded to trial, at which time applicant was 31 years old. The WCJ awarded 100 percent PD based on the 1997 permanent disability rating schedule premised on the fact that the Sharks were required to provide applicant with the notices regarding permanent disability indemnity under Labor Code  §4061. Thus, he came within one of the exceptions to the 2005 schedule for pre-2005 dates of injury.

On reconsideration, the WCAB reversed the WCJ and found that the 2005 schedule applied. The Board reasoned that since applicant did not file his workers’ compensation claim until 2007, the Sharks did not have an obligation to pay temporary disability indemnity or to send a §4061 notice. Applicant filed a Petition for Reconsideration which was denied and then sought judicial review which was granted.

The Board reviewed the evidence that had been before the WCAB. Applicant’s National Hockey League Standard Players Contract showed a salary of $400,000 for the 2001/2002 season unless the services of the player were “assigned, exchanged, loaned or otherwise transferred to a Club in another league,” at which time the player “shall only be paid at an annual salary rate” of “$40,000 in the minor league” for the 2001/2002 season. Applicant’s testimony established that he played the entire season for a minor league team. His 2001 W-2 wage and tax statement showed $40,000 in “salary pay” from the Sharks. Finally, there was a form entitled “Employer’s Report of Occupational Injury or Illness” dated November 2, 2000, reporting that applicant was injured on October 28, 2000 while playing hockey and that he could not work for at least one full day after the injury. The form indicates he was paid full wages for the date of injury, and, in box number 26, that his salary was being continued.

The Court noted that 8 CCR §9814 provides as follows:

“In relation to periods of temporary disability, where an employer provides salary or other payments in lieu of or in excess of temporary disability indemnity, the claims administrator or employer shall comply with the notice requirements of this article which apply to temporary disability"

The contract, applicant’s W-2 statement, the Employer’s Report, and applicant’s uncontroverted testimony were conclusive evidence that the Sharks paid applicant salary continuation while he was injured. Therefore, in accordance with 8 CCR §9814, the employer was obligated to send a Labor Section §4061 notice when the salary continuation ended. The failure to do so qualifies as an exception under §4660(d) that entitled applicant to have his injury rated under the 1997 PD schedule. Therefore, the Court remanded the matter for a decision in accordance with its opinion.

Significant Panel Decisions

Significant panel decisions are cases that are identified for dissemination by the WCAB in order to address new or recurring issues of importance to the workers’ compensation community. These cases are citable and may serve as guidance, but do not constitute binding legal precedent.

EAMS/WCAB Trial Record

Hernandez v. AMS Staff Leasing (2011) 76 CCC 330, WCAB Significant Panel Decision.

The WCJ ordered defendant to produce its claims adjuster for deposition and also to produce various documents at the deposition. Defendant filed a Petition for Removal,
contending that the broad scope of discovery ordered was not justified. Defendant further complained that it was prejudiced by the fact that the WCJ did not explain the reasons for his decision, the exhibits offered by the parties were not admitted into evidence, no summary of evidence was prepared, the issues and stipulations were not formulated on the record, and the exhibits relied on by the WCJ were not scanned into EAMS due to a backlog in scanning.

The WCJ recommended that removal be denied. Nonetheless, the WCAB was prepared to grant defendant’s petition and rescind the WCJ’s order. However, before the opinion could be filed and served, the Board discovered that a C & R of the case had been approved by a different judge, rendering the decision moot. Since the C & R and Order Approving had not been previously scanned into EAMS, the Board had not been aware of it. Therefore, the Petition for Removal was dismissed.

In a lengthy opinion, the WCAB panel reviewed the statutes and regulations governing the requirements imposed on WCJs in issuing decisions as well as the necessary contents of both a paper file and one maintained in electronic form only. While the Board agreed with the WCJ that not every discovery dispute requires a “full blown evidentiary hearing” and preparation of a full Minutes of Hearing and Summary of Evidence and an Opinion on Decision, it noted that the record must be properly maintained, especially if documents were accepted and a decision issued.  

In this case, the Board did not have a paper or electronic record of all the pleadings and motions that precipitated the WCJ’s Orders. The Minutes of Hearing contained only an abbreviated notation that the WCJ signed an “Order Compelling Deposition and limited production of documents.”  There was no record of the issues submitted for decision, the stipulations and issues presented by the parties, or the admitted evidence. The end result, as the panel noted, was that the Board wasted its valuable time and resources on a dispute that no longer existed.

Denials of Writs of Review

Writ denied cases are not written opinions of the Courts of Appeal, but are merely editorial summaries of WCAB decisions. These cases are citable and may serve as guidance, particularly for otherwise unsettled issues, but do not constitute binding legal precedent.

Apportionment

Costa v. WCAB (2011) 76 CCC 261, Court of Appeal, Fourth Appellate District, Division Two, writ denied.

Applicant sustained an industrial injury to his lower back, urologic system, and GI tract. His condition gradually worsened and his PTP obtained an MRI that revealed severe spinal stenosis at superimposed on a very large disc herniation. Applicant awoke one morning with paralysis from the waist down, impotence, and complete loss of bowel and bladder control. He was then diagnosed with cauda equina syndrome, and the PTP performed emergency surgery. The PTP eventually declared him to be P & S and 100 percent permanently disabled. However, he apportioned 20 percent of the PD to the pre-existing, congenital spinal stenosis, as did defendant’s QME.

The WCJ rejected the apportionment. Defendant petitioned for reconsideration which was granted and the matter remanded for further development of the medical record. Both doctors were deposed and testified. The PTP testified that prior to the injury, applicant had no disability resulting from the spinal stenosis, that the spinal stenosis was a risk factor and that he could not say with medical probability that it would have caused any problem absent the industrial injury. However, he agreed with the defendant’s QME that applicant’s disability was more severe as a result of the congenital spinal stenosis.

The WCJ issued a new F & A, this time awarding 80 percent PD after apportionment. Applicant petitioned for reconsideration contending that there was no medical evidence that he would have had a problem, absent the injury; that apportionment cannot be based on a risk factor and that his non-industrial condition was dormant until it was “lit up” by the industrial injury. The WCAB denied reconsideration in an opinion that held that if the congenital condition worsened the disability, the apportionment was valid. The Board went on to say,

“Applicant’s argument that the WCJ improperly apportioned to a risk factor ignores the medical opinion that applicant’s pre-existing congenital condition went beyond being a risk factor to being an actual cause of his increased permanent disability, when applicant sustained his industrial injury. Additionally, with regard to apportionment, we must answer in the affirmative to applicant’s question, “is the concept of ‘lighting up’ dead?” Now that Labor Code section 4663 requires that there be apportionment to the cause of permanent disability, the fact that an asymptomatic pathological condition is not labor disabling at the time of the industrial injury, but is lit up by the injury, will not prevent apportionment…”

Applicant filed a Petition for Writ of Review that was denied by the Court of Appeal.

Southern California Gas Company v. WCAB (Vasquez) (2011) 76 Cal. Comp. Cases 276, Court of Appeal, Second Appellate District, Division One, writ denied.

Applicant filed a specific injury and a cumulative trauma involving his psyche, head, headaches, and seizures. The two cases were consolidated. He was evaluated by an AME who concluded that applicant was permanently totally disabled on a psychiatric basis. The WCJ awarded 100 percent PD without apportionment. Defendant sought reconsideration Defendant sought reconsideration, contending in relevant part that it was only liable for the percentage of PD directly caused by the injury and that it should not be responsible for the disability caused by applicant’s life-long schizoid personality disorder. Furthermore, it argued that under Benson v. WCAB, there was no legal basis for a 100 percent award or for combining disability and issuing a joint award. Defendant also contended in relevant part that the AME’s report did not constitute substantial medical evidence because of the AME’s “blatant” refusal to make an apportionment determination.

The WCAB noted that there was no dispute concerning the fact that applicant was totally disabled and the issues were: (1) whether any of Applicant’s overall PD should be apportioned to non-industrial causation; and (2) whether applicant’s industrial disability should be apportioned between two separate awards. The Board noted that the defendant failed to have the AME state what approximate percentage of applicant’s disability was caused by non-industrial factors or explain why he could not make such a determination. Defendant had, therefore, failed to carry its burden of proof on the issue of apportionment of disability to non-industrial causes. Regarding the Benson issue, the AME stated that the disabilities caused by the two industrial injuries could not be separated because they were ‘intertwined’ and that any attempted separation would be “a speculation.” Thus, defendant also failed in its burden of proving apportionment between the two injuries.

The AME apparently refused to cooperate, stating that he considered the Benson decision to be “another nonsense.” There is no mention of the statutory requirement that the physician consult with another doctor if he is unable to make an apportionment determination that was specifically noted in the opinion in Benson, nor was there mention of a motion to strike the doctor’s report at the trial level.

AME/QME Procedure

Montebello Unified School District v. WCAB (Gallardo) (2011) 76 Cal. Comp. Cases 582, Court of Appeal, Second Appellate District, Division Four, writ denied.

Applicant sustained an admitted industrial injury and the parties agreed to refer her to AMEs. However, defendant contended that the reports of applicant’s second PTP could not be shown to the AME because applicant had objected to the opinion of the first PTP and under 8 CCR §9785(B)(3) was required to resolve the dispute before she could select another PTP. The dispute came on for trial and the WCJ found that 1) the reports were admissible and 2) even if they weren’t, it was permissible to show them to the AME. Defendant filed a Petition for Reconsideration.

In his reconsideration report, the WCJ noted that the first PTP did not find that there was no need for further medical care. Rather, he found that the applicant “requires” medical care in the event of an exacerbation. He also felt that the reports were admissible because the defendant “ratified” him as the new PTP by approving his treatment in utilization review

Even if it should be determined that the reports were not admissible, the WCJ noted that 8 CCR§35(e) provides, in part, that a party shall not forward to the AME or PQME “any medical report or record or other information or thing which has been stricken, or found inadequate or inadmissible by a WCJ, or which otherwise has been deemed inadmissible to the evaluator as a matter of law.”

He also cited Evidence Code § 801(b) which provides, in part, that an expert may consider a matter “whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” Evidence Code § 801(b) adds, “unless an expert is precluded by law from using such matter as a basis for his opinion.”

In order to reconcile these two provisions, the WCJ concluded that Rule 35 only gives the judge discretion to decide what is provided to the AME, and does not prohibit the AME from considering inadmissible evidence. As expert witnesses, an AME is entitled to consider all relevant evidence, even if it is later found to be inadmissible. However, it is also true that the doctor, as an expert witness, should be shielded from having to peruse materially false data including inflammatory statements or inaccurate information. This problem can be avoided by either having the judge rule on documents that are the subject of disagreement or having both parties present when the material is presented to the doctor in a deposition.

The WCAB treated defendant’s petition as a Petition for Removal and granted it. The Board agreed that the reports of the second PTP should be provided to any future AME or PQME, but did not reach the issue of whether or not the reports were admissible since no one had sought to introduce them into the evidentiary record and the WCJ had not made a formal finding on that issue.

The panel declined to answer the question of whether an inadmissible report should be shown to an AME/PQME. What they appear to be saying is that in any event, the reports are not inadmissible until there is a formal finding of inadmissibility by the WCJ after a party has actually offered the reports into evidence. If other panels chose to follow this line of reasoning, it would have clear applicability to the question of whether the reports of non-MPN doctors should be shown to an AME/PQME. In the Valdez decision, the WCAB found reports obtained outside of a validly established and properly noticed MPN to be inadmissible. However, Valdez did not address the issue of whether such reports should be shown to an AME/PQME.

WCAB Panel Decisions

Judicial notice of WCAB Panel decisions may be taken under Evidence Code 452(d) which provides that judicial notice may be taken of the records of any court of this state. They may serve as guidance, but do not constitute binding legal precedent.

Discovery

Kabala v. City of Alhambra Fire Department, 2010 Cal. Wrk. Comp. P.D. LEXIS, WCAB panel decision.

Applicant claimed to have sustained an industrial injury to his internal system, heart, cardiovascular system, both eyes, and both ears. He was evaluated by a PQME. The case was scheduled for a priority conference. Applicant requested that the case go off calendar and defendant opposed the request. The WCJ set the matter for trial, but ordered discovery to remain open, over defendant’s objection, so that the applicant attorney could depose the PQME. Applicant failed to depose the PQME before the matter came on for trial. At the trial, applicant testified and the case was submitted for decision.

Subsequently, the WCJ issued an order entitled, Order Vacating Submission and Disposition to Complete the Medical Record, in which he ordered the parties to depose the PQME. He further ordered them to agree on AMEs for evaluation of applicant’s cardiac and hypertensive issues and his ears, eyes, and pulmonary conditions. Failing to reach agreement, the parties were to advise the WCJ that court-appointed physicians were required. Defendant filed a Petition for Removal.

The WCAB vacated the WCJ’s order noting that applicant had had at least six months prior to the conference to depose the doctor and even then, took no steps to set the doctor’s deposition after the conference and prior to the trial. There was no evidence that he took any steps to obtain evaluations of applicant’s eyes and ears, nor was there evidence that a pulmonary injury had ever been claimed, unless it was included the “internal” claim. Furthermore, nothing in applicant’s testimony at trial reflected that any existing condition had recently changed or that he had recently developed any new condition.

The WCAB therefore granted the Petition for Removal and remanded the case to the trial level to be submitted for decision by the WCJ.

PQME Procedure, Ex Parte Communications

O’Reilly v. State of California; Department of Corrections, 2010 Cal. Wrk. Comp. P.D. LEXIS 376, WCAB panel decision.

Applicant requested a QME panel in the specialty of pain medicine to which the defendant did not object. When the panel issues, applicant struck one of the names, but defendant did not make a timely strike. On June 18, 2009, applicant’s attorney contacted Dr. Morely’s office and obtained an appointment date of November 4, 2009. Notice of this appointment was served on defense counsel on the same day. On the following day, applicant’s counsel contacted the doctor’s office to obtain an earlier date.

On June 22, 2009, defendant objected to the appointment advised that "the new panel will be sent in 5-10 days replacing Brendan Morley, M.D." Defendant did not advise applicant that defendant had contacted the Medical Unit to obtain a replacement QME.

On June 23, 2009, Dr. Morley's staff returned the calls made by applicant's counsel and changed the appointment to July 29, 2009. Applicant notified defendant of the new date.
On June 24, 2009, the Medical Unit issued a new panel. Defendant then struck one of the names and when applicant’s attorney did not strike a name, scheduled an appointment with Dr. Rosenberg for July 23, 2009. Applicant did not attend the appointment with Dr. Rosenberg, but kept the appointment with Dr. Morley.

The dispute proceeded to trial. The WCJ found that Dr. Morley was not the PQME, struck his report, and ordered applicant to pay his charges. Applicant filed a Petition for Reconsideration which the WCAB dismissed as not taken as a final order, but granted as a Petition for Removal.

The Board cited 8 CCR §31.5(a)(2) which provides that a replacement QME may be obtained when the following occurs:

"A QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment, or if the 60 day scheduling limit has been waived pursuant to section 33(e) of Title 8 of the California Code of Regulations, the QME cannot schedule the examination within ninety (90) days of the date of the initial request for an appointment." (Cal. Code Regs., tit. 8, § 31.5(a)(2).)

The Board found that when applicant obtained the earlier appointment date with Dr. Morley, it cured any prior non-compliance with the applicable rules. The fact that the Medical Unit issued a new panel was not the same as an adjudication of the dispute at the WCAB.

With respect to applicant’s attorney’s communications with Dr. Morley’s office, there was no violation of the ex parte rules because the communications were only with staff members and were not made directly with the doctor. The plain words of Labor Code §4062.3 limit the prohibition on ex parte communications to doctors, attorneys and parties and the doctor’s office staff does not fall into any of these categories.

If the Board did not feel there was a problem with an attorney calling the doctor’s office and speaking with staff members, it would follow that there would be no objection to a claims adjuster engaging in a similar communication.

Medical Provider Networks

Aguilar v. Barrett Business Services, Inc., 2010 Cal. Wrk. Comp. P.D. LEXIS 615, WCAB panel decision.

Applicant sustained an admitted industrial injury. The defendant sent her a notice advising her that she must treat within the MPN and gave instructions for accessing a list of physicians on the internet. Enclosed with the letter was a list of physiatrist and pain management practitioners located within applicant's geographic area. The list contained one pain management doctor and fourteen physiatrists. Applicant filed a DOR alleging that the defendant had failed to meet the requirements for an MPN and she was therefore entitled to select her own doctor outside the MPN.

At trial, applicant's attorney contended that the list provided by the defendant was not compliant because it only included one pain management specialist. Furthermore, when counsel accessed the list of doctors on the internet, there was one pain management specialist within thirty miles of applicant's zip code . When he accessed on a later date, no pain management specialist was provided. Defendant argued that that the inclusion of the physiatrists was sufficient to satisfy the requirements of the regulation.

The WCJ found that the defendant had met its burden of proof and ordered the applicant to select a PTP from the MPN. Her finding was based on research she conducted after the trial that caused her to conclude that physiatrists are experts in pain management. Therefore, the inclusion of physiatrists on the MPN list satisfied the statute. Applicant filed a Petition for Reconsideration which was granted by the WCAB.

The Board noted that a party must prove each issue in its case for which it bears the burden of proof, by a preponderance of the evidence; and it is only after that burden has been met that the other party must produce evidence to rebut it. Here, it was the defendant's burden to produce evidence that it complied with the regulations in connection with the list of specialists. However, the WCJ did not decide on the basis of the evidence before her, but rather augmented the record with her own evidence. This was improper because as a matter of due process, the applicant should have been given notice and an opportunity to be heard in order to rebut the evidence on the merits. Thus, the decision was returned to the trial level in order to give the applicant an opportunity for rebuttal.

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