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Juan Lopez claimed injury to his cervical, thoracic, and lumbar spine, to his shoulders and arms, to his heart and lungs, and in the form of hypertension, HIV, and GERD , while employed by Barrett Business Services as a laborer during the period from December 23, 2009, through December 23, 2010 (ADJ7745966). He also claimed injury to his heart and blood system, and in the form of HIV and GERD while employed by the same Barrett on September 13, 2010 (ADJ7909061).

By December 2014, the case had already been remanded by the Board on the issue of AOE/COE and assigned to a new WCJ after the prior WCJ had retired. The on-going litigation of this matter from December 2014 to the present included a number of additional times when the matter was continued or ordered off calendar for development of the record. The the case was submitted and the new WCJ issued an Opinion, and a Petition for Reconsideration was denied.

At an MSC in September 2016 the defendant asked that the case be set for trial on all issues, and applicant asked for a continuance, which was granted, and at the next MSC in November 2016 defendant asked that discovery be closed and the case set for trial, but the WCJ to the matter off calendar for a PQME appointment.

After a DOR was filed, a trial scheduled for February 6, 2018, but the applicant did not appear, and the case was continued. On April 24, 2018, the parties appeared, the matter was pending submission to allow post-trial briefs and submitted on May 14, 2018.

On June 15, 2018, the WCJ vacated submission in part because the internal PQME deferred to an expert in infectious disease. At the second status conference after the submission was vacated the court issued an order for a panel qualified medical examiner in Infectious Disease. On February 7, 2019, the parties appeared for a status conference and no PQME panel had been issued because applicant’s hearing representative “guessed” his office did not send the paperwork. The court continued the status conference.

At the next status conference on May 2, 2019, the parties agreed to submit on the existing record. but the WCJ found that the record needed further development, At a continued MSC on August 19, 2021, the parties supplemented the existing record with the report of Dr. Vyas and the matter was submitted. On October 6, 2021, the court realizing the report submitted was not the internal medicine report the court had been waiting for and vacated the submission.

Finally on May 10, 2023, the matter was tried and submitted. On May 22, 2023, the WCJ issued a Finding and Award which found applicant failed to meet his burden to show industrial injury on the disputed body parts.

Applicant filed a Petition for Reconsideration in case number ADJ7745966, where the WCJ found that applicant did not sustain injury AOE/COE to his lungs or in the form of HIV (human immunodeficiency virus). And in case number ADJ7909061wherein the WCJ found that applicant did not sustain injury AOE/COE, to his heart and blood system nor in the form of HIV or GERD. Applicant contends the record should be further developed regarding applicant’s HIV injury claim.

Reconsideration was denied in the panel decision of Lopez v Barrett Business Services -ADJ7909061-ADJ7745966 (August 2023).

The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924].)

However, if a party fails to meet its burden of proof by obtaining and introducing competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed. (Lab. Code, § 5502; San Bernardino Community Hospital v. Workers’ Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Telles Transport Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159 [66 Cal.Comp.Cases 1290].)

The duty to develop the record must be balanced with the parties’ obligation to exercise due diligence to complete necessary discovery. (San Bernardino Community Hosp. v. Workers’ Comp. Appeals Bd. (McKernan), supra.)

In this case, the parties have submitted the case for decision three times and the WCJ has vacated submission three times.The medical record has not been developed as directed by the WCJ despite ample opportunity to do so.

“Our review of the entire record (for the period from January 2011, to the present) clearly indicates that applicant was repeatedly given the opportunity to develop the record in support of his injury claims. As noted above, it is not our responsibility to rescue a party by ordering the record to be developed when that party has previously been provided ample opportunity to further develop the record.”

“Thus, applicant has not shown good cause, under the circumstances of this matter, to yet again, delay final resolution of applicant’s injury claims through further development of the record. Therefore, we will not disturb the WCJ’s F&A.”