Can an injured worker receive benefits to which he fails to prove entitlement? The Workers’ Compensation Appeals Board, in Gamez v Newport Mesa Unified School District 2017 Cal. Wrk. Comp. P.D. LEXIS 89, expressed a resounding negative answer. However, the ramifications of the decision extend far beyond this case.
Gamez sustained an admitted injury AOE/COE to his bilateral shoulders. At the time of the MSC, and, prior to trial, the issue of extent of Permanent Disability was raised. However, the employee’s potential entitlement to increased benefits pursuant to Labor Code Section 4658(d)(2) was never asserted. The Trial Court ultimately issued a decision holding that Gamez would be entitled to receive 22% P.D. at the neutral P.D. rate. The employee filed a Petition for Reconsideration in which he argued that the Trial Court erred in failing to award increased benefits pursuant to Labor Code Section 4658(d)(2).
The WCAB denied the Petition for Reconsideration. Despite the fact that the employee’s entitlement to, and the employer’s liability for, the 15% P.D. increase was impliedly raised when Permanent Disability was placed in issue, Gamez had the burden of proving all of the elements of his entitlement to the increase. The WCAB noted that the employee (or his attorney) failed to proffer any evidence that the employer had failed to timely transmit the appropriate form offering regular, modified or alternative work or that the employer employed in excess of 50 individuals. It was not defendant’s obligation to demonstrate that Gamez was not entitled to the increase.
The decision is of limited importance with respect to the subject matter of the dispute: the 15% P.D. increase liability is only applicable to those injuries occurring between 1/1/05 and 12/31/12. However, the decision is vitally crucial to the concept of both due process and the liberal construction rule. Labor Code Section 3202 does not require, or permit, the WCAB to create evidence beneficial to the injured worker. In all cases, the identity of the party holding the affirmative on an issue must be identified pursuant to Labor Code Section 5705. Once that party is identified, he/she must proffer proof beyond a preponderance of the evidence in order to prevail.