The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
PTPRejected · orthopedic surgeon
Dr. Burton's apportionment opinion was found not to meet the legal standard of reasonable medical probability and lacked sufficient explanation for apportionment of the right knee permanent disability.
The opinion was based on reasonable medical evidence rather than reasonable medical probability and did not adequately explain how obesity and age contributed to osteoarthritis and disability.
From the decision · page 1We agree with the WCJ that the opinion of primary treating physician (PTP) Paul Burton,
M.D., is not substantial medical evidence supporting a finding of apportionment. (Hegglin v.
Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v.
Workmen's Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525];
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc) [a medical
QMENot substantial evidence · orthopedic surgeon
Dr. Kolesnik opined that the applicant's osteoarthritis was naturally progressing and that the total knee replacement would have been needed regardless of the industrial injury, but his opinion was not relied upon by the WCJ.
Dr. Kolesnik believed he could make an apportionment determination without reviewing all diagnostic imaging and operative reports, which affected the evidentiary weight of his report but did not demonstrate bias.
From the decision · page 10In the Petition for Reconsideration Applicant asserts that this WCJ failed to consider the
argument that Dr. Robert Kolesnik demonstrated bias against the applicant on the issue of
apportionment. This WCJ does not believe that Dr. Robert Kolesnik demonstrated bias against the
applicant with regard to the issue of apportionment. Dr. Robert Kolesnik expressed his openness
to review and comment on the operative report of Dr. Redix which was never made available to
him. (Joint Exhibit A-1, Pg. 93 and 99). He later stated that he did not believe he needed to review
these reports due to his impression that the applicant did not sustain a significant knee injury based
on the applicant having not twisted her knee, and having not fallen to the floor at the time of injury.
He noted that applicant had worse osteoarthritis on her uninjured left knee, and also noted that she
had stood on her knees equally during her life. Dr.
PTPRelied upon · orthopedic surgeon
Dr. Solomon served as PTP for the right wrist; his reports were considered substantial medical evidence by the WCJ.
From the decision · page 8Tyler and McClune are distinguishable from this case. In Tyler, the WCJ did not feel the
medical evidence presented at Trial was substantial, and as such it was determined that the WCJ
had authority to develop the record. In the instant matter, the medical reporting of Dr. Paul Burton
and Dr. Jason Solomon, reports of which this court relied on, constituted substantial medical
evidence. Furthermore, neither party raised the issue of Dr. Paul Burton or Dr. Jason Solomon not
being substantial medical evidence on the Pre-Trial Conference Statement. The court did not rely
on the PQME reporting of Robert Kolesnik and as such the arguments applicant raised as to why
his reporting is not substantial evidence are not relevant. As such, unlike in Tyler this court does
not see the need to develop the medical record as there is substantial medical evidence that can be
relied upon.