ADJ10010348 · January 6, 2022

Dr. Shen's opinions were not based on an adequate or accurate history and were based on surmise, speculation, or guess; no substantial evidence in the record to support a finding on this issue; issue deferred for further development of the record.

From the decision · page 73. The issue of injury arising out of and occurring in the course of employment to applicant's cervical spine is deferred.

Issue deferred pending development of the record.

From the decision · page 710. The issue of attorney fees for applicant's attorney is deferred.

Issue deferred pending development of the record.

From the decision · page 7*** 8. The issue of applicant's entitlement to future medical treatment for her cervical spine and/or lumbar spine is deferred.

Issue deferred pending development of the record.

From the decision · page 79. The issue of whether there was an overpayment of permanent disability indemnity is deferred.

Issue deferred pending development of the record.

From the decision · page 7*** 5. The issue of the permanent disability caused by the November 7, 2014 injury is deferred.

Dr. Shen's opinions regarding applicant's cervical and lumbar spine conditions were not based on an adequate or accurate history and were based on surmise, speculation, or guess.

Favours neutral

This lack of substantial evidence required deferral of the issue of injury AOE/COE to the cervical spine and further development of the record.

From the decision · page 5It is clear that Dr. Shen's opinions are not based on an adequate or accurate history and it appears that they are in fact based on surmise, speculation, or guess. Thus, his reports and deposition testimony do not constitute substantial evidence on the issue of injury AOE/COE and cannot be the basis for the F&A. We also note that having reviewed all of the medical reports in the trial record, none of the doctors (except Dr. Shen) addressed the issue of whether applicant's cervical and lumbar spine conditions were an aggravation of the prior injuries, i.e. constitute a new injury, or if they were simply an exacerbation of the prior injuries. Therefore, the trial record does not contain evidence upon which a finding regarding the issue of injury AOE/COE may be based.

Dr. Shen opined applicant's cervical and lumbar spine conditions were an exacerbation of pre-existing conditions, not an aggravation; admitted his opinions were based on applicant's statements and not supported by medical records; stated he had not reviewed records between 2006 and 2014; acknowledged his opinions may be based on surmise or speculation and expressed confusion about the case.

Dr. Shen's opinions were not based on an adequate or accurate history and were not substantial evidence; his reports and deposition testimony could not be the basis for a finding on injury AOE/COE to the cervical spine.

From the decision · page 5It is clear that Dr. Shen's opinions are not based on an adequate or accurate history and it appears that they are in fact based on surmise, speculation, or guess. Thus, his reports and deposition testimony do not constitute substantial evidence on the issue of injury AOE/COE and cannot be the basis for the F&A. We also note that having reviewed all of the medical reports in the trial record, none of the doctors (except Dr. Shen) addressed the issue of whether applicant's cervical and lumbar spine conditions were an aggravation of the prior injuries, i.e. constitute a new injury, or if they were simply an exacerbation of the prior injuries. Therefore, the trial record does not contain evidence upon which a finding regarding the issue of injury AOE/COE may be based.

Lab. Code § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Any award, order, or decision of the Appeals Board must be supported by substantial evidence. To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, it cannot be based on surmise, speculation, or guess, and it must set forth the basis and the reasoning in support of the conclusions.

Applied to determine that Dr. Shen's opinions were not substantial evidence and could not support a finding on injury AOE/COE to the cervical spine.

From the decision · page 4[35 Cal.Comp.Cases 16].) To be substantial evidence a medical opinion must be based on pertinent

Dr. Shen's testimony revealed his opinions were based on applicant's statements rather than medical records, and he had not reviewed records between 2006 and 2014.

From the decision · page 5Here, Dr. Shen repeatedly stated that applicant's cervical and lumbar spine conditions were an exacerbation of "the pre-existing neck and low back pain." (See App. Exh. 7, pp. 5 § 6 [EAMS pp. 18 § 19]; p. 4 [EAMS p. 10]; p. 2 [EAMS p. 2].) However, our review of his reports indicate that of the entire medical record he reviewed, only two reports pertained to treatment applicant received prior to the November 7, 2014 injury, at issue herein. Also, Dr. Shen testified that he had not reviewed any medical records that supported his conclusions as to whether the cervical and lumbar spine conditions were an exacerbation or an aggravation of the pre-existing conditions.2 (App. Exh.9/Def. Exh E, pp. 18 § 19, p. 21, and p. 53.) Further, Dr. Shen testified that: