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Retired WCJ Raymond F. Correro recently published an excellent article on Exploring the Limitations on the WCAB’s Authority to Develop, Augment, and Reopen the Record, on the LexisNexis website.

As he explains, there is tension between the Workers’ Compensation Appeals Board’s power and authority to develop the evidentiary record pursuant to Labor Code sections 5701 and 5906, – and prohibitions on admitting evidence not listed on the pretrial conference statement pursuant to Labor Code section 5502(d)(3) and the closure of discovery at that point of the litigation.

Prior to the late 1990s, the tension was less severe, as the power to reopen a case after submission for decision was somewhat limited. If the applicant failed to carry their burden of proof, they simply did not prevail, and a take nothing award was the result.

Judge Carrero discussed a trifecta of cases that seemed to open the door and exacerbate this tension, by allowing seemingly unfettered power of the trial Judge, or WCAB on reconsideration to further develop the record after submission of the case for decision.

The cases are Tyler v, Workers’ Comp. Appeals Bd. ((1997) 56 Cal.App.4th 389, 62 Cal.Comp.Cases 924, 1967 Cal.App LEXIS 562; McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 63 Cal.Comp.Cases 261, 1998 Cal.App. LEXIS 282; and M/A Com-Phi v. Workers’ Comp. Appeals Bd. (Sevadjian) (1998) 65 Cal.App.4th 1020, 63 Cal.Comp.Cases 821, 1998 Cal.App. LEXIS 670.

Judge Carrero points out that “The WCAB continues to rely on these same three cases from the late 1990’s which has been manifested in numerous cases to become a mantra of sorts frequently expressed or formulated in almost the exact same or similar language with little variation.”

However he concludes his article by pointing out that there are limitations to the application of the trifecta of cases, and cites as authority a case that followed approximately three years later, McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138; 2002 Cal.Wrk.Comp. LEXIS 1218 (en banc).

McDuffie sets fourth a limit. Development of the record is allowed only if neither side has presented substantial evidence on which a decision could be based. But it is not appropriate where a decision could be rendered on the existing record and the party seeking to introduce new evidence has failed to show that such evidence “was not available or could not have been discovered by the exercise of due diligence prior to the [mandatory] settlement conference.”

In the case where further development of the record is appropriate, a seven step set of procedures to follow are suggested.

Many thanks to Judge Carrero for his thorough and well reasoned analysis of the limits on developing the record in a submitted case.