Home > Tactics and Strategy, WCJs > Is “Developing the Record” Back?

Is “Developing the Record” Back?

Some of my dear, loyal readers will recall their humble blogger’s post on “developing the record” and the apparent signal that the Workers’ Compensation Appeals Board was growing weary of applicants getting second and third bites at the apple when they found themselves repeatedly bringing knives to a gun fight.  It looks like knives may be back in style.

In a recent panel decision, Jose Luis Tejeda-Garcia v. Modern Group (Company)/Dragon Products, the workers’ compensation Judge gave an order to develop the record, which the WCAB declined to disturb.

Applicant claimed to have sustained injury to his lungs, vocal cords, and associated squamous cell carcinoma while working for defendant as a welder.  Defendant took the position that the injury was non-industrial because of applicant’s history of smoking and alcohol use.

The parties brought their dispute to a panel Qualified Medical Evaluator in the specialty of otolaryngology, who suggested that they go to an epidemiologist or oncologist.  For some reason, the otolaryngology PQME did not find that the other PQME, the internal medicine specialist/oncologist, was qualified to issue an opinion on the questions of causation and apportionment in this case.

The WCJ found the record to be insufficient, reasoning that neither PQME addressed the issue of industrial aggravation.  She specifically rejected defendant’s contention that she was acting “as an advocate for the injured worker.”

Your humble blogger will chime in with his own thoughts at this point.  It is not clear who filed the declaration of readiness to proceed, but in either case, the parties conferred at the Mandatory Settlement Conference and elected to proceed to trial.  Somehow, applicant must have thought that he could proceed to trial and win – otherwise he could have just told the WCJ at the MSC – we need to develop the record, further discovery is necessary.

But that didn’t happen.

Applicant proceeded to bite at the apple, and the defense was ready and prepared to litigate the case at trial.

What should have happened was one of the following: either the WCJ should have ruled that there was insufficient evidence from which to draw the conclusion that applicant had carried his burden of proving industrial injury, including causation, or the WCJ should have ruled that the burden had been carried, and let the defense challenge the ruling on appeal.

The WCAB should have found the same – that applicant decided to roll the dice and that the trial results should have stuck, one way or another.

Unfortunately, the WCAB did not take action on this one.  Oddly enough, the WCAB specifically stated that “defendant’s petition should be denied because it does not demonstrate significant prejudice or irreparable harm.”  But significant prejudice was demonstrated in the panel decisions of Bates and Elias.

It’s decisions like these that make your perceptive blogger skeptical when he hears of the need for “judicial economy.”  The WCAB could save the workers’ compensation system from having to have two trials and two appeals for every case by telling the applicants that they only get one shot (just like everyone else in the world).  Instead, by allowing applicants to “develop the record” after a trial, the WCAB commissioners are inviting more clogs in an over-clogged system.  Your humble blogger does not approve.

In any case, folks, keep your eyes open, because the WCAB might just be inclined to let the “develop the record” insanity continue.

Categories: Tactics and Strategy, WCJs
  1. Tom Harbinson
    May 18, 2012 at 8:47 am

    This is another example of good intentions gone wrong. The “develop the record” concept was initiated to assist in bringing the matter to closure. It is now being misused to make a record to support the claim.. Much like the unpublished opinion idea to save the cost of redundancy became a means for wiping out decisions that were not in accord with the liberal legal concepts.

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