California: Exploring the Limitations on the WCAB’s Authority to Develop, Augment, and Reopen the Record Pursuant to Labor Code Sections 5701 and 5906 – Raymond F. Correio Authors LexisNexis Article
Labor Code Sections 5701 and 5906 both deal with development of the record, however, there is an inherent conflict between the Workers’ Compensation Judge (WCJ) and the Appeals Board’s authority and duty to develop the record. In an article for Lexis Nexis, Attorney Raymond F. Correio explores the conflicting tensions related to the legislative policies and the 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 limited. If the applicant failed to carry their burden of proof, they simply did not prevail, and a take nothing award was the result. Correio shares a trifecta of cases that open the door and exacerbated 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.
Correio suggests there is a considerable body of relevant case law on the topic and both the applicant and defense bar should have an equal interest in this issue. “The Appeals Board’s exercise of its power to develop or reopen the record in certain situations may manifest itself in rescuing either party from a failure of proof or “bailing out” a party who has not adequately prepared their case,” Correio writes.
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