WCAB Has No Duty to “Rescue” Applicant From Take Nothing

Robert Backus, a 40-year-old salesman for Schireson Bros, Inc., dba Volutone, filed two Applications, alleging that on 12/13/17 and during the period commencing 1/13/17 through 1/13/18, he sustained injury arising out of and occurring in the course of employment to his low back and lower extremities. The claims were denied by the employer.

Backus testified at the trial and the matter was continued for further testimony. At the next hearing, he testified and Rossana Harris was called as witness by defendant. The trial was continued and at the third hearing no additional exhibits were offered and there was no testimony; the matter was submitted for decision

The WCJ found that Robert Backus did not sustain injury arising out of and occurring in the course of employment to his low back and lower extremities; and Ordered that he take nothing by way of his injury claim.

The WCAB denied his Petition for Reconsideration in the panel decision of Robert Backus v Schireson Bros, Inc. – ADJ11847265-ADJ11741978 (June 2022).

Backus contended on Reconsideration that the reports from QME Allen Fonseca, M.D., were not properly considered regarding the issue of injury AOE/COE, that the reports from Dr. Fonseca are substantial evidence, that the decision was based on a “partial and unsubstantial record,” that his “unimpeached and uncontradicted” testimony must be accepted as substantial evidence, and that the record should be further developed.

Both the Panel and the WCJ noted that regarding applicant’s “unimpeached and uncontradicted” testimony, the WCJ stated in the Report, Backus, ”had highly questionable credibility due to the fact that he failed to disclose his prior back injury to either examining physician” … “and initially denied such injury under oath until confronted with the records of same.” The WCJ also noted that applicant’s testimony, “was in fact rebutted by Defense witness Rossana Harris.”

The Panel cited numerous authorities for the proposition that “It is well established that a WCJ’s opinions regarding witness credibility are entitled to great weight.”

The Panel went on to say that “most of applicant’s arguments are premised on his contention that the WCJ erred by not considering the reports from QME Dr. Fonseca.” However after having “reviewed the entire trial record, it is clear that the WCJ is correct; the trial record contains no reports from Dr. Fonseca.”

As to the issue of whether the record should be further developed, the panel said “applicant is correct that the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue.”

Citing numerous case authorities, and referring to footnote 2 of the WCJ Report, the panel went on to say “if a party fails to meet its burden of proof by failing to introduce competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed.”

WCAB Has No Duty to “Rescue” Applicant From Take Nothing

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