Gee

Shelly Gee (Gee) petitions this court by a writ of review challenging the decision of the Workers’ Compensation Appeals Board (WCAB). The WCAB weighed the relevant medical evidence without applying the treating physician’s presumption of correctness under Labor Code section 4062.9 because the parties failed to raise the presumption as an issue by the time of trial. We find the presumption operative as a matter of law whenever the underlying facts meet the presumption’s conditions. We therefore conclude the WCAB erred by not applying the presumption and remand the case for reconsideration.

Factual and Procedural History

Gee worked as a supermarket clerk for Lucky Stores, Inc. (Lucky) when she filed three separate workers’ compensation claims alleging work-related injuries to her head, neck, shoulders, wrists, and upper extremities. Gee’s claims included a cumulative injury through November 20, 1996, a specific injury on February 13, 1998, and a cumulative injury through February 17, 1998.

Gee initially sought treatment for her upper extremity and wrist injuries with Dr. Sharon Nichols in December 1996. Dr. Nichols diagnosed Gee with right carpal tunnel syndrome and…