Duffie v. Los Angeles County Metropolitan Transit Authority, 022502 CAWC, MON 254928

Case DateFebruary 25, 2002
CourtCalifornia
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...

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