Sanchez, Eliana, Applicant v. THE KROGER COMPANY; SEDGWICK CLAIMS MANAGEMENT SERVICES, Defendants

WORKERS’ COMPENSATION APPEALS BOARD
STATE OF CALIFORNIA
ELIANA SANCHEZ, Applicant
vs.
THE KROGER COMPANY; SEDGWICK CLAIMS MANAGEMENT SERVICES,
Defendants
Adjudication Numbers: ADJ11409682 (MF); ADJ13102769
Santa Barbara District Office
OPINION AND ORDER
GRANTING PETITION FOR
RECONSIDERATION
AND DECISION AFTER
RECONSIDERATION
Applicant seeks reconsideration of the Joint Findings and Award (JF&A) dated August 22,
2025, wherein the workers’ compensation administrative law judge (WCJ) found, in relevant part,
that while employed by defendant as a cashier checker on May 18, 2018 (ADJ11409682),
applicant sustained injury arising out of and in the course of employment (AOE/COE) to the right
foot, but did not sustain injury to the left foot, knee, or hip as a compensable consequence, or
permanent disability to any of the alleged body parts. The WCJ awarded applicant future medical
for the right foot “to cure or relieve from the effects of the specific injury.” (JF&A, p. 2.) With
respect to applicant’s cumulative injury claim, the WCJ found, in relevant part, that applicant did
not sustain injury AOE/COE during the period from May 18, 2018 through December 12, 2019
(ADJ13102769), to the right foot, left foot, left knee, or left hip, and that all “issues of permanent
disability and apportionment are [thus] moot.” (Ibid.)
Applicant contends that the reports of orthopedic panel Qualified Medical Evaluator
(PQME), Dr. Alexis Dixon, which were relied upon the WCJ, failed to describe applicant’s
activities of daily living (ADLs) or provide sufficient reasoning in support of Dr. Dixon’s
conclusions, and are therefore not substantial medical evidence. (Petition, pp. 4-5.)

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We have received an Answer from defendant, and the WCJ prepared a Joint Report and
Recommendation on Petition for Reconsideration (Report), recommending that the Petition for
Reconsideration (Petition) be denied.
We have considered the Petition, the Answer, and the contents of the Report, and we have
reviewed the record in this matter. For the reasons discussed below, we will rescind and substitute
the JF&A to reflect that applicant sustained injury AOE/COE to the bilateral feet, left knee, and
left hip relative to the May 18, 2018 specific injury (ADJ11409682), and return this matter to the
trial level for further proceedings consistent with this opinion.
FACTS
Applicant filed an Application for Adjudication of Claim alleging that on May 18, 2018
(ADJ11409682), she sustained injury AOE/COE to the right foot while employed by defendant as
cashier checker. Subsequently, applicant added the left foot, knee, and hip as compensable
consequence injuries.
In addition to the specific injury, applicant alleged a cumulative injury from May 18, 2018,
through December 12, 2019 (ADJ13102769) to the bilateral feet, left knee, and left hip.
The parties proceeded with discovery and retained orthopedic PQME, Dr. Alexis Dixon,
and podiatry PQME, Dr. Arthur Fass, to serve as their medical-legal experts in the respective
claims.
Dr. Dixon evaluated applicant October 28, 2019, and January 24, 2024, with corresponding
reports issuing on November 19, 2019, and February 8, 2024. She also issued supplemental reports
dated May 20, 2020, May 27, 2020, and May 21, 2024, and was deposed by the parties on April
11, 2023.
In her November 19, 2019 report, Dr. Dixon opined that applicant sustained injury
AOE/COE to the right foot as a result of the May 18, 2018 specific injury with a resulting 2%
whole person impairment (WPI) using Almaraz Guzman. (Exhibit A, p. 38.) She did not find injury
AOE/COE to the left hip or knee. (Ibid.) In a supplemental report dated May 27, 2020, Dr. Dixon
reiterated that she “performed a thorough history and physical examination [during applicant’s
initial evaluation] and did not find injury to the left hip, left knee, or left foot.” (Exhibit C, p. 3.)
As 	such, 	“[w]ithout 	significant 	change 	to 	[applicant’s] 	provided 	history 	of 	physical
examination[,]” her opinions remained unchanged. (Ibid.) She suggested a reevaluation and

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requested “further medical records and appropriate imaging.” (Id. at p. 4.) Applicant was then
reevaluated, and in a report dated February 8, 2024, Dr. Dixon once again found no medical
evidence to “substantiate compensatory injury to the left hip or knee.” (Exhibit D, p. 37.) She
outlined a diagnosis of left hip trochanteric bursitis but found it unrelated to the May 18, 2018
specific injury. (Id. at p. 34.) Despite being provided with copies of Dr. Fass’s reports, Dr. Dixon
failed to address his conflicting findings on the compensable consequence injuries. Dr. Dixon also
did not address applicant’s cumulative injury claim.
Dr. Fass evaluated applicant October 12, 2021, June 14, 2022, February 7, 2023, and
August 6, 2024, with corresponding reports issuing thereafter, in addition to supplemental reports
dated August 25, 2022, and December 1, 2022. He was deposed by the parties on March 18, 2025.
In his report dated October 12, 2021, Dr. Fass underscored that a “loss of balance and
stability on the right foot can reasonably cause increased weight bearing on the left limb and lead
to a painful syndrome.” (Exhibit 8, p. 7.) Applicant was diagnosed with a right foot crush injury,
right toe fractures, entrapment neuropathy of the right great toe, right hallux nail onychauxis, left
knee chondromalacia, and left hip trochanteric bursitis. (Ibid.) Dr. Fass indicated that causation
was due to “the injuries [that] occurred during the course of [applicant’s] employment[.]” (Ibid.)
In a subsequent report dated June 14, 2022, Dr. Fass opined that applicant reached permanent and
stationary status/maximum medical improvement (P&S/MMI) and that in addition to the 2% WPI
from Dr. Dixon, using “table 17-5 on page 529 of the AMA Guides[,]” applicant also sustained
7% WPI due to “gait disorder and pain in the contralateral limb” resulting from “numbness and
weakness of the right great toe” as a result of the work injuries. (Exhibit 7, p. 7.) In a follow up
report dated August 6, 2024, Dr. Fass included an additional 1% WPI for right toenail
disfigurement. (Exhibit 2, p. 14.) He reiterated that applicant had “gait abnormality due to a loss
of weight-bearing pressure on the toes of the right foot as well as neuropraxia to the deep peroneal
nerve causing limping leading to a gait disorder.” (Exhibit 2, pp. 12-13.) He enlisted Dr. Dixon’s
assistance on the issue of apportionment and contended that “pain in the left hip and knee as well
as the bilateral heels and left ankle were associated with the abnormal gait and the reliance on
increased weight bearing on the left side to avoid pressure on the right.” (Ibid.) Lastly, during Dr.
Fass’s March 18, 2025 deposition, he testified that if there was indeed a cumulative injury, it could
be argued that the two injuries were inextricably intertwined. (Exhibit 1, pp. 28:18 - 31:25.) A
definitive answer regarding the existence of a cumulative injury, however, was not provided.

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On February 10, 2025, applicant filed a Declaration of Readiness to Proceed to a mandatory
settlement conference on all issues. A mandatory settlement conference was set for February 26,
2025, and continued to April 16, 2025, before being set for trial, to be held on May 28, 2025.
On May 28, 2025, the claims were ordered consolidated, and the issues of injury AOE/COE
permanent disability, apportionment, and attorney’s fees for both claims were adjudicated. The
Minutes of Hearing (MOH) indicated that parties had stipulated to injury AOE/COE to the bilateral
feet, left knee, and left hip for the May 18, 2018 specific injury (ADJ1409682). (MOH, May 28,
2025, p. 2; Pretrial Conference Statement (PTCS) for ADJ1409682.) Applicant submitted as
evidence, the PQME reports of Dr. Fass as well as a transcript of his deposition. Defendant
submitted as evidence, the PQME reports of Dr. Dixon as well as a transcript of her deposition,
primary treating physician (PTP) reports from Drs. Steven Pearson and Michael Bahk, a benefit
printout, and a denial notice for the cumulative injury. Thereafter, the matter stood submitted.
On August 22, 2025, the WCJ issued a JF&A wherein he found, in relevant part, that while
employed on May 18, 2018 (ADJ11409682) by defendant as a cashier checker, applicant sustained
injury AOE/COE to the right foot, but did not sustain injury to the left foot, knee, or hip as a
compensable consequence, or permanent disability to any of the alleged body parts. The WCJ
awarded applicant future medical for the right foot “to cure or relieve from the effects of the
specific injury.” (JF&A, p. 2.) With respect to applicant’s cumulative injury claim, the WCJ found,
in relevant part, that applicant did not sustain injury AOE/COE to the right foot, left foot, left knee,
or left hip during the period from May 18, 2018 through December 12, 2019 (ADJ13102769), and
that all “issues of permanent disability and apportionment are [thus] moot.” (Ibid.)
It is from these findings that applicant seeks reconsideration.
DISCUSSION
I.
Preliminarily, former Labor Code1 section 5909 provided that a petition for reconsideration
was deemed denied unless the Appeals Board acted on the petition within 60 days from the date
of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant
part that:
1 All further statutory references will be to the Labor Code unless otherwise indicated.

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(a) 	A petition for reconsideration is deemed to have been denied by the appeals
board unless it is acted upon within 60 days from the date a trial judge
transmits a case to the appeals board.
(b)
(1) 	When a trial judge transmits a case to the appeals board, the trial
judge shall provide notice to the parties of the case and the appeals
board.
(2) 	For purposes of paragraph (1), service of the accompanying report,
pursuant 	to 	subdivision 	(b) 	of 	Section 	5900, 	shall 	constitute
providing notice.
Under section 5909(a), the Appeals Board must act on a petition for reconsideration within
60 days of transmission of the case to the Appeals Board. Transmission is reflected under the
Events tab in the Electronic Adjudication Management System (EAMS). Specifically, in Case
Events, under Event Description is the phrase “Sent to Recon” and under Additional Information
is the phrase “The case is sent to the Recon board.”
Here, according to Events, the case was transmitted to the Appeals Board on September
24, 2025, and 60 days from the date of transmission is November 23, 2025, which is a Sunday.2
(See Cal. Code Regs., tit. 8, § 10600(b).) The next business day is November 24, 2025, which is a
Monday. This decision was issued by or on November 24, 2025, so that we have timely acted on
the petition as required by section 5909(a).
Section 5909(b)(1) requires that the parties and the Appeals Board be provided with notice
of transmission of the case. Transmission of the case to the Appeals Board in EAMS provides
notice to the Appeals Board. Thus, the requirement in subdivision (1) ensures that the parties are
notified of the accurate date for the commencement of the 60-day period for the Appeals Board to
act on a petition. Section 5909(b)(2) provides that service of the Report and Recommendation shall
constitute notice of transmission.
Here, according to the proof of service for the Report, it was served on September 24, 2025,
and the case was transmitted to the Appeals Board on September 24, 2025. Service of the Report
and transmission of the case to the Appeals Board occurred on the same day. Thus, we conclude
that the parties were provided with the notice of transmission required by section 5909(b)(1)
2 WCAB Rule 10600(b) (Cal. Code Regs., tit. 8, § 10600(b)) states that: Unless otherwise provided by law, if the last
day for exercising or performing any right or duty to act or respond falls on a weekend, or on a holiday for which the
offices of the Workers’ Compensation Appeals Board are closed, the act or response may be performed or exercised
upon the next business day.

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because service of the Report in compliance with section 5909(b)(2) provided them with actual
notice as to the commencement of the 60-day period on September 24, 2025.
II.
Turning now to the merits of the Petition, applicant contends that the reports of orthopedic
PQME, Dr. Alexis Dixon, which were relied upon by the WCJ, are not substantial medical
evidence as they fail to describe applicant’s ADLs or provide sufficient reasoning in support of
Dr. Dixon’s conclusions. (Petition, pp. 4-5.)
In our review of the record, it is clear the parties agreed to stipulate to injury AOE/COE to
the bilateral feet, left knee, and left hip for the May 18, 2018 specific injury (ADJ1409682). This
stipulation was initially outlined in the Pretrial Conference Statement, which was signed by both
parties. (PTCS for ADJ1409682, p. 2.) It was also listed under the section titled “Stipulations and
Issues” in the May 28, 2025 Minutes of Hearing and confirmed by the WCJ as being “accurately
and completely stated into the record.” (MOH, May 28, 2025, pp. 2-3.)
Section 5702 provides that:
The parties to a controversy may stipulate the facts relative thereto in writing and
file such stipulation with the appeals board. The appeals board may thereupon make
its findings and award based upon such stipulation, or may set the matter down for
hearing and take further testimony or make the further investigation necessary to
enable it to determine the matter in controversy.
(Lab. Code, § 5702, italics added.)
The general rule is that stipulations are binding on the parties unless, on a showing of good cause,
the parties are given permission to withdraw from their agreements. (County of Sacramento v.
Workers’ Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1121 [65 Cal.Comp.Cases
1].) Pursuant to Weatherall, “A stipulation is ‘An agreement between opposing counsel...ordinarily
entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,’
and serves ‘to obviate need for proof or to narrow range of litigable issues’ in a legal proceeding.”
(Id. at p. 1119.) “Good cause” to set aside an order or stipulations depends upon the facts and
circumstances of each case. “Good cause” includes mutual mistake of fact, duress, fraud, undue
influence, and procedural irregularities. (Johnson v. Workmen’s Comp. Appeals Bd. (1970) 2
Cal.3d 964, 975 [35 Cal.Comp.Cases 362]; Santa Maria Bonita School District v. Workers’ Comp.
Appeals Bd. (2002) 67 Cal.Comp.Cases 848, 850 (writ den.); City of Beverly Hills v. Workers’

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Comp. Appeals Bd. (1997) 62 Cal.Comp.Cases 1691, 1692 (writ den.); Smith v. Workers’ Comp.
Appeals Bd. (1985) 168 Cal.App.3d 1160, 1170 [50 Cal.Comp.Cases 311] (writ den.).)
Here, the parties voluntarily stipulated to injury AOE/COE to the bilateral feet, left knee,
and left hip for the May 18, 2018 specific injury claim (ADJ1409682). Neither party has sought to
withdraw from this stipulation. The WCJ’s JF&A, however, disregards the parties’ prior
stipulation and fails to provide good cause for doing so. As such, we accept the original stipulation
between the parties with respect to injury AOE/COE to the above body parts and will rescind and
substitute the WCJ’s findings to reflect the parties’ agreement.
III.
Given the aforementioned stipulation, and the new findings of injury AOE/COE for the
specific injury (ADJ1409682), we believe that further development of the record is necessary with
respect to issues of permanent disability, apportionment, and need for future medical treatment for
the left foot, hip, and knee. Further, based upon our review of the evidentiary record, the issue of
injury AOE/COE for the cumulative injury (ADJ13102769) has not been sufficiently addressed.
As noted above, Dr. Dixon did not address the cumulative trauma in her reporting, and although
Dr. Fass was retained as a medical-legal expert for the cumulative injury claim, he has yet to
provide a definitive opinion on the issue.
It is well established that the Appeals Board has a duty to further develop the record when
there is a complete absence of (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389,
393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers’ Comp. Appeals Bd.
(1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) evidence on an issue. As
explained in Tyler, “The principle of allowing full development of the evidentiary record to enable
a complete adjudication of the issues is consistent with due process in connection with workers’
compensation claims.” (Ibid.) Further, sections 5701 and 5906 authorize the WCJ and the Appeals
Board to obtain additional evidence, including medical evidence when necessary. (McDuffie v. Los
Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141-143 (Appeals
Bd. en banc).)
The WCAB also has a constitutional mandate to ensure “substantial justice in all cases”
and any decision must be supported by substantial evidence. (Kuykendall v. Workers’ Comp.
Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264]; Lab. Code, § 5952(d);

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Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310];
Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500];
LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)
It has long been established that, in order to constitute substantial evidence, a medical opinion
must be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. Appeals
Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [33 Cal.Comp.Cases 660]; Travelers Ins. Co. v.
Industrial Acc. Com. (Odello) (1949) 33 Cal.2d 685, 687-688 [14 Cal.Comp.Cases 54]; Rosas v.
Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700-1702, 1705 [58 Cal.Comp.Cases
313].) A medical report is not substantial evidence unless it sets forth the reasoning behind the
physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd.
(1970) 69 Cal.2d 399, 407 (a mere legal conclusion does not furnish a basis for a finding); Zemke
v. Workmen's Comp. Appeals Bd., 68 Cal.2d 794, 799, 800-801 [33 Cal.Comp.Cases 358] (an
opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not
constitute substantial evidence); see also People v. Bassett (1968) 69 Cal.2d 122, 141, 144 (the
chief value of an expert's testimony rests upon the material from which his or her opinion is
fashioned and the reasoning by which he or she progresses from the material to the conclusion,
and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no
better than the reasons upon which it is based); (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases
604 (Appeals Bd. en banc).)
In the instant matter, it is clear that the existing record is insufficient on the issue of injury
AOE/COE for the cumulative injury claim (ADJ13102769) as well as the issues of permanent
disability, apportionment, and need for future medical treatment for the left foot, knee, and hip
relative to the May 18, 2018 specific injury (ADJ11409682). We note that although Dr. Dixon
found a lack of medical evidence to support injury to these body parts, the numerous medical
reports by Dr. Fass conclude otherwise. (See Exhibit C, p. 3.; Exhibit D, p. 37; Exhibit 7, p. 7;
Exhibit 2, pp. 12-13.) In her reporting and during her deposition, Dr. Dixon failed to address Dr.
Fass’s contradictory findings or provide sufficient reasoning to support her continued belief that
there were no compensable consequence injuries to the left foot, knee, and hip. In light of the
foregoing, further development of the record is necessary.
When the record requires further development, the preferred procedure is to allow
supplementation of the medical record by the physicians who have already reported in the case.

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(McDuffie, supra, at p. 142.) If the supplemental opinions of the previously reporting physicians
do not or cannot cure the need for development of the medical record, the selection of an agreed
medical evaluator (AME) by the parties should be considered, or alternatively, the WCJ may
appoint a regular physician. (Ibid.)
Accordingly, we grant applicant’s Petition, rescind and substitute the JF&A to reflect that
applicant sustained injury AOE/COE to the bilateral feet, left knee, and left hip relative to the May
18, 2018 specific injury (ADJ11409682), and return this matter to the trial level for further
proceedings consistent with this opinion. We shall leave undisturbed the WCJ’s relevant findings
on all other issues not affected by the above changes.
For the foregoing reasons,
IT IS ORDERED that applicant’s Petition for Reconsideration of the Joint Findings and
Award dated August 22, 2025, is GRANTED.
IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers’
Compensation Appeals Board, that the Joint Findings and Award dated August 22, 2025, is
RESCINDED and the following SUBSTITUTED therefor:
FINDINGS OF FACT
1. 	With respect to ADJ11409682, applicant, Eliana Sanchez, born [], while employed
on May 18, 2018, as a cashier checker by The Kroger Company, sustained an injury
arising out of and in the course of employment to her bilateral feet, left knee, and
left hip.
2. 	With respect to ADJ13102769, while employed during the period from May 18,
2018 through December 12, 2019 as a cashier checker by The Kroger Company,
applicant claims to have sustained injury arising out of and in the course of
employment to the bilateral feet, left knee, and left hip.
3. 	At the time of the above injuries, the employer was permissibly self-insured.
4. 	At the time of the above injuries, applicant’s earnings were $1,022.86 per week,
warranting indemnity rates of $681.91 for temporary disability and $290.00 for
permanent disability.
5. 	The employer has paid compensation as follows: temporary disability at a weekly
rate of $681.91 for the period from May 19, 2018 through July 8, 2018.

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ORDER
All other issues, including permanent disability, apportionment, and need for future
medical treatment for the left foot, left knee, and left hip relative to the specific
injury (ADJ11409682), and injury arising out of and in the course of employment
for the cumulative injury (ADJ13102769) (as well as permanent disability,
apportionment, and need for future medical should industrial injury be found), are
hereby ordered deferred.
WORKERS’ COMPENSATION APPEALS BOARD
/s/ ANNE SCHMITZ, DEPUTY COMMISSIONER
I CONCUR,
/s/ JOSEPH V. CAPURRO, COMMISSIONER
/s/ CRAIG L. SNELLINGS, COMMISSIONER
DATED AND FILED AT SAN FRANCISCO, CALIFORNIA
NOVEMBER 24, 2025
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT
THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
ELIANA SANCHEZ
GHITTERMAN, GHITTERMAN & FELD
BRADFORD & BARTHEL, LLP
RL/cs
I certify that I affixed the official seal of
the Workers’ Compensation Appeals
Board to this original decision on this date.
CS