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Grinberg: AOE/COE: Who Bears the Burden?

By Gregory Grinberg

Wednesday, July 1, 2020 | 438 | 0 | 1 min read

In 2020 so far, we’ve tackled fires, almost-war with Iran, plague, murder hornets, volcanos and just about everything else; fill in the blank for yourself. 

Gregory Grinberg

Gregory Grinberg

But in the face of all that, we’ve persevered and we are quickly reaching the turning point: This week, 2020 will be half over. Will the second half of 2020 be a reward of smooth sailing? Or perhaps was the first half just the starter with the entree to follow?

In any case, as of next week, we’ll be closer to 2021 than we were to the start of 2020, and if you’re looking for a reason — any reason — to be optimistic, here’s one for you.

In a recent panel decision, Lopez v. Prell Restaurant Group, the Workers' Compensation Appeals Board reversed a judge's finding directing applicant to take nothing and sent the case back for further development of the record. If there were a fact pattern to test how far the concept of “developing the record” could bend, this one comes close to dropping the bar pretty low.

What were the facts? Applicant alleged an injury to his knee, leg, spine, bilateral upper extremities and psyche. Applicant’s counsel did not object to a declaration of readiness to a mandatory settlement conference and setting for trial of the issue of AOE/COE on the strength of two treatment reports. At trial, the judge determined the reports were not substantial medical evidence and thus ordered applicant to take nothing on his claims.

In its opinion on reconsideration, the WCAB first acknowledged that the burden of proof to establish AOE/COE is applicant’s: He must prove by a preponderance of the evidence that a compensable claim exists. Then things turn out somewhat unexpectedly.

The panel then held that because there was no substantial medical evidence in the record (the two treatment reports being kicked out), the judge must now develop the record further and order a medical-legal evaluation. 

In other words, applicant agreed to go to trial on the strength of two treatment reports, defendant prevailed at trial in that applicant failed to carry his burden, and now the record must be developed further (at defendant’s expense) by way of a medical-legal evaluation.

So who actually bears the burden? Does this panel opinion suggest that defendant bears the burden of proving that the claim is not industrial with substantial medical evidence? If defendant fails to do so, this panel opinion would require that more litigation and discovery costs (and delays) be imposed on defendant to help applicant prove his case.

Let’s play this out. Let’s say the qualified medical evaluator comes back and finds an industrial injury, but the conclusion is baseless and the facts upon which its premised are wrong. The parties go to trial and the judge again orders a take nothing because there is no basis upon which to find industrial injury. What result? Develop the record some more, I would assume.

The only way for the defense to prevail is to have a report of substantial medical evidence finding no industrial injury. Thus, the defense is forced to carry the burden of proving the claim is not industrial before it can close the file. So who bears the burden of proof?

What should defendants do, based on the Lopez opinion? This panel opinion strongly suggests that defendants must get a medical-legal exam of their own initiative unless they want the case sent back down for further development. Should we now increase the litigation costs of every file by a QME review and report, and the extra six-12 months it takes to get a valid panel and a final report?

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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