Home > Develop the Record, Tactics and Strategy > WCJ to Applicant: Pick up Your Burden!

WCJ to Applicant: Pick up Your Burden!

Apparently, they’re not handing out Order Granting Applicant’s Petition to Reopen, (or Ogapr, as your sentimental blogger’s great-grandma used to say) at some of the Board venues anymore.

In the case of Seb Baghoomian v. Workers’ Compensation Appeals Board (writ denied), applicant filed a Petition to Reopen for New and Further Disability and the workers’ compensation Judge, the WCAB, and the Court of Appeal were all having none of it.

Applicant was employed as a foreman in 2003 when he was attacked by four thugs while filling up gas on a work-related trip between Pasadena and San Francisco.  He was unconscious for five minutes during the attack but eventually returned to work for about two months before he quit.

Applicant sought treatment for neck pain and left-sided numbness and weakness, also filing a claim for injury to the back, head, and psyche.  The claim was settled by way of stipulation in December of 2007.

In July of 2011, applicant filed his petition.  The matter went to trial but the WCJ denied applicant’s petition, reasoning that applicant had failed to carry his burden of proof as set out in Labor Code section 3202.5.

At trial, applicant presented several PR-2 reports from his primary treating physician, but offered no narrative reports or reports of any kind from the treating physician to actually support the theory that he had sustained new and further disability.   The WCJ also rejected applicant’s efforts to allow him to develop the record, citing the Elias case mentioned on this blog some time ago.

Perhaps the burden of proof still falls on the applicant now and then, which is not something this cynical blogger can object to with any conviction.

  1. Steve Cattolica
    March 19, 2012 at 9:32 am

    Greg,

    Court opinion aside for the moment, how many of your clients routinely pay for a narrative when it is submitted either with or instead of the PR-2 form report? I will postulate the answer is zero. Therefore, the likelihood of finding a narrative from the PTP is virtually zero. The deck is still stacked in your clients’ favor.

    • March 19, 2012 at 9:36 am

      Steve,

      A narrative report is just a letter from the applicant away. If the PTP won’t write a narrative report at the request of the applicant/patient, then the applicant/patient can just change PTPs to one who will.

      The point of this case, and the blog post, is that the applicant shouldn’t just be able to say “it hurts – gimme gimme gimme!” If the employer/insurer is to be forced to pay more benefits, the applicant should have to do some leg work in proving justification.

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