JAMES MC DUFFIE, Applicant,
v.
LOS ANGELES COUNTY METROPOLITAN TRANSIT AUTHORITY, Permissibly Self-Insured, c/o CONSTITUTION STATE SERVICE COMPANY, Defendant(s).
No. MON 254928
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
February 25, 2002
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, Chairman.
On
October 1, 2001, the Board granted defendant's petition
for reconsideration of the decision dated July 19, 2001,
wherein the workers' compensation administrative law
judge (WCJ) found, among other things, that "[t]he
present orthopedic medical record is lacking." The WCJ
thereby deferred the issues of temporary disability,
permanent disability, apportionment and medical treatment
"pending receipt of a report from a Court appointed
medical evaluator." After granting reconsideration to
study the record and because of the important legal issue
this presented, that is, the preferred procedure to be
followed where the medical record requires further
development, and in order to secure uniformity of decision in
the future, the Chairman of the Board, upon a majority vote
of its members, reassigned this case to the Board as a whole
for an en banc decision on this issue.
(Lab. Code, §115.)[1]
As set
forth below, we conclude that where the medical record
requires further development either after trial or submission
of the case for decision, the preferred procedure is first to
seek supplemental opinions from the physicians who have
already reported in the case. If the supplemental reports or
depositions of the previously reporting physicians cannot or
do not sufficiently develop the record, an agreed medical
evaluator (AME) may be considered. Finally, if none of these
options succeeds or is possible, the WCJ or the Board may
then appoint a medical examiner.
In her
decision of July 19, 2001, the WCJ found that applicant,
while employed as a bus operator from March 4,1976 through
June 29,1999, sustained industrial injury to both knees and
in the form of hypertension. The WCJ found that
applicant's claims were not barred by the statute of
limitations. As to the deferred issues noted previously with
respect to the applicant's bilateral knee injury, the WCJ
appointed Alex Angerman, M.D., to examine applicant and
submit a report, the cost of which was ordered payable by
defendant.
In its
petition, defendant contended that (1) "the appointment
of a. . . medical evaluator by the WCJ should not be the...
first action in further developing the medical record;"
(2) the report of Dr. Burstein, relied on by the WCJ to find
applicant's industrial hypertension injury, does not
constitute substantial evidence; and (3) the WCJ erred in
finding that applicant's claims were not barred by the
statute of limitations.
With
respect to defendant's second and third contentions,
based on our review of the entire record, and for the reasons
stated by the WCJ in her report and recommendation (report),
we are persuaded that the opinion of Dr. Burstein is
substantial evidence in support of the finding of industrial
hypertension, and that the WCJ properly found that
applicant's claims were not barred by the statute of
limitations. Accordingly, we adopt and incorporate the
WCJ's report with respect to these findings and will
affirm them.
We
agree, however, with defendant's first contention as to
further development of the medical record. Therefore, we will
amend the WCJ's decision...