Court: WCAB Has Duty to Flesh Out Witness Statements When Workers Can't Speak

Tuesday, December 9, 2025 | 0

The Workers' Compensation Appeals Board had a duty to develop the record and ensure that qualified medical evaluators received witness statements regarding a worker before denying a petition for reconsideration, a California appellate court ruled.

Because a workers' compensation judge said the employer's testimony about what Teofilo Aparicio was doing before he suffered a stroke was unclear, and the QME had not received witness statements that they said were necessary to determine causation, the 2nd District Court of Appeal said the WCAB's decision was not supported by substantial medical evidence.

"When an injured worker is incapacitated and cannot provide his own account, contemporaneous witness statements become essential to accurate medical evaluation," the court said. "Here, both medical evaluators explicitly identified missing witness information as necessary for their analysis, yet these statements — despite being in the employer’s possession and ordered produced — were never provided to the medical evaluators."

Aparicio suffered a stroke in November 2011 while working at King Fish. He spent two months in the hospital before being transferred to a convalescent home.

He was deemed incompetent, and his wife was appointed guardian ad litem and trustee.

His wife testified that a co-worker said Aparicio complained about a headache and fainted before he was taken to the hospital. The co-worker reportedly said she suggested calling an ambulance because Aparicio had been sitting for about two hours.

The owner of the company testified that he called 911 about five minutes after Aparicio fell and that an ambulance arrived about five minutes later. The owner said the company receives fish deliveries on Saturdays and that Aparicio assisted in unloading fish, but he did not recall if there was a delivery on the day of Aparicio's stroke.

A supervisor also testified that 911 was called about five minutes after the fall and that Aparicio was able to speak with paramedics when they arrived. He was also unsure whether there was a delivery on the day of the accident.

Two qualified medical evaluators agreed that untreated hypertension was the predominant cause of the stroke, but both said they could not reach final decisions on causation without reviewing contemporaneous witness statements about what happened before the stroke. 

The internal medicine QME deferred his opinion until he could review those statements. The neurology QME apportioned 20% of the disability to delayed medical care but subsequently found no industrial causation based on the employer's testimony that paramedics were called immediately.

A workers' compensation judge found that Aparicio did not suffer a compensable injury. 

Aparicio petitioned for reconsideration, arguing that there was a need to further develop the record based on both QMEs saying they had not received the requested witness statements.

The WCAB denied reconsideration, and Aparicio appealed.

The board conceded in its answer that the record lacked substantial evidence and asked the 2nd DCA to remand for further proceedings. The WCAB noted that the owner, supervisor and another employee gave statements to an investigation service and, despite an order to produce statements, they were not uploaded to the case management system or provided to medical evaluators.

The 2nd DCA agreed that the medical opinions did not amount to substantial evidence because the QMEs identified missing evidence that they said was necessary for their analyses. An opinion explicitly dependent on unavailable evidence cannot constitute substantial evidence, the court said.

Both qualified medical evaluators said they needed witness statements to determine causation, and without those statements clarifying the chronology of events, the court said their opinions are based on an incomplete history and cannot constitute substantial medical evidence.

Because the workers' compensation judge characterized the testimony of the employer as "unclear," the board's decision is not supported by substantial evidence from either side, and it must develop the record further.

The court's decision in Teofilo Aparicio v. WCAB et al., B343586, 12/05/2025, unpublished, is here.