ADJ10499216 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board panel affirmed the Findings of Fact and Award issued by the WCJ on December 17, 2020, denying the defendant's petition for reconsideration.

Defendant sought reconsideration of the Findings of Fact and Award issued by the WCJ on December 17, 2020, which was denied by the WCJ and then affirmed by the WCAB panel on reconsideration.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedcervical spine · thoracic spine · lumbosacral spine · bilateral shoulders · psyche

The WCAB found substantial evidence supporting the injury to the cervical, thoracic, and lumbosacral spine and psyche as accepted parts of body injured.

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on December 17, 2020, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his cervical, thoracic, and lumbosacral spine, to his bilateral shoulders, and his psyche; that applicant was temporarily disabled for the period from October 16, 2015, through June 30, 2017; that the injury caused 70% permanent disability; that the opinions of qualified medical examiner (QME) John W. Hill, D.C., are substantial evidence; and that the report from orthopedist Don Williams, M.D. was not admissible.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Hill examined the applicant twice, reviewed medical records and diagnostics, and found the applicant reached maximum medical improvement as of June 22, 2017.

Favours Applicant prevailed

This supported the finding of permanent disability and temporary disability periods.

From the decision · page 2BACKGROUND Applicant claimed injury to his neck, bilateral shoulders, arm (right or left not identified), mid-back, abdomen, low back, bilateral legs, and psyche, while employed by defendant as a sanitation worker on October 16, 2015. Applicant's claim of injury to his neck, mid-back, low back, and psyche, was accepted. QME Dr. Hill evaluated applicant on November 10, 2016. (Joint Exh. W, Dr. Hill, November 16, 2016.) Dr. Hill examined applicant, took a history and reviewed the medical records he was provided. He indicated that applicant needed to undergo further diagnostics and that applicant's condition had not reached maximum medical improvement (MMI). (Joint Exh. W, pp. 16 § 17.) Dr. Hill was provided additional medical records, including the diagnostics he had requested, and re-evaluated applicant on June 22, 2017. (Joint Exh. X, Dr. Hill, June 30, 2017.) He concluded that, "The Subject is MMI on the date of this report" (Joint Exh. X, p. 22) and that applicant had 28% cervical spine WPI, 8% thoracic spine WPI, and 23% lumbar spine WPI. (Joint Exh. X, p. 21.) The parties proceeded to trial on October 6, 2020. The issues submitted for decision included, parts of body injured, temporary disability, permanent disability/apportionment, and applicant's employment as a seasonal worker. (Minutes of Hearing and Summary of Evidence (MOH/SOE), October 6, 2020.

Dr. Hill's impairment ratings were based on flexion/extension X-rays and AMA Guides, which the WCAB found to be substantial evidence.

Favours Applicant prevailed

This supported the 70% permanent disability rating.

From the decision · page 16Cervical: 100% - (15.01.01.00 - 28 - [1.4] 39 - 340G - 42 - 44%) 44% Thoracic: 100% - (15.02.01.00 - 8 - [1.4] 11 - 340G - 13 - 14%) 14% Lumbar: 100% - (15.03.01.00 - 23 - [1.4] 32 - 340G - 35 - 37%) 37%

Applicant testified he worked throughout the year and was not seasonal, and defendant failed to provide evidence to establish seasonal employment.

Favours Applicant prevailed

This supported the finding that the applicant was not a seasonal employee, affecting temporary disability calculations.

From the decision · page 15As to seasonal employment, the Applicant testified in his deposition that he worked throughout the year, but the question was not directly as to which months. He also noted that he was washing the trailer as the season was over, but he did not say that "his" season was over. A review of Dr. Hill's initial QME report makes no indication of the Applicant being a seasonal employee. There were no employment records introduced into evidence to establish a seasonal work period, nor was there any testimony from the employer on the point. As the burden is on the Defendant to establish seasonal employment, it is found that burden is not met and the employee is not seasonal.

What the panel did with the medical opinions

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.

QMERelied upon · Chiropractor

Dr. Hill examined the applicant twice, reviewed medical records and diagnostics, found the applicant reached maximum medical improvement as of June 22, 2017, and assessed whole person impairment ratings for cervical, thoracic, and lumbar spine based on flexion/extension X-rays and AMA Guides.

Dr. Hill's impairment ratings were found to be substantial evidence and supported the permanent disability rating of 70%.

From the decision · page 2BACKGROUND Applicant claimed injury to his neck, bilateral shoulders, arm (right or left not identified), mid-back, abdomen, low back, bilateral legs, and psyche, while employed by defendant as a sanitation worker on October 16, 2015. Applicant's claim of injury to his neck, mid-back, low back, and psyche, was accepted. QME Dr. Hill evaluated applicant on November 10, 2016. (Joint Exh. W, Dr. Hill, November 16, 2016.) Dr. Hill examined applicant, took a history and reviewed the medical records he was provided. He indicated that applicant needed to undergo further diagnostics and that applicant's condition had not reached maximum medical improvement (MMI). (Joint Exh. W, pp. 16 § 17.) Dr. Hill was provided additional medical records, including the diagnostics he had requested, and re-evaluated applicant on June 22, 2017. (Joint Exh. X, Dr. Hill, June 30, 2017.) He concluded that, "The Subject is MMI on the date of this report" (Joint Exh. X, p. 22) and that applicant had 28% cervical spine WPI, 8% thoracic spine WPI, and 23% lumbar spine WPI. (Joint Exh. X, p. 21.) The parties proceeded to trial on October 6, 2020. The issues submitted for decision included, parts of body injured, temporary disability, permanent disability/apportionment, and applicant's employment as a seasonal worker. (Minutes of Hearing and Summary of Evidence (MOH/SOE), October 6, 2020.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Medical opinion must be framed in terms of reasonable medical probability, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

Applied to evaluate the substantiality of Dr. Hill's medical opinions.

From the decision · page 2DISCUSSION To be substantial evidence a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Dr. Hill examined applicant twice and he reviewed the medical record including MRIs, x-rays, and an electromyography/nerve conduction study (EMG/NCV). In his June 30, 2017 report, Dr. Hill discussed the various diagnostics he reviewed and his examination findings. (Joint Exh. X, pp. 12

Labor Code, § 4062.2

Comprehensive medical evaluation for disputes arising on or after January 1, 2005, must be obtained as provided in Labor Code section 4062.2.

Applied to the medical evaluation process in this case.

From the decision · page 4Whenever a comprehensive medical evaluation is required to resolve any dispute arising out of an injury or a claimed injury occurring on or after January 1, 2005, and the employee is represented by an attorney, the evaluation shall be obtained only as provided in this section. (Lab. Code, § 4062.2.)

Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal. App. 4th 596 [71 Cal. Comp. Cases 155]

Labor Code section 4050 prohibits using medical-legal reports to circumvent the medical evaluation and reporting procedure of Labor Code section 4062.

Applied to exclude Dr. Williams' medical-legal report from evidence.

From the decision · page 4Finally, applicant was examined by QME Hill on November 10, 2016, and June 22, 2017. (Joint Exhs. W and X.) Dr. Hill submitted his supplemental report on September 14, 2018. (Joint Exh. Y.) Don T. Williams, M.D., examined applicant on October 19, 2018. The report from Dr. Williams is clearly not a treating physician report but is instead a medical-legal report. Also, there is no evidence that defendant had applicant "submit at reasonable intervals to examination" by Dr. Williams as "a practicing physician" (Lab. Code, § 4050) and Labor Code section 4050 may not be used to circumvent the medical evaluation and reporting procedure of Labor Code section 4062. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal. App. 4th 596 [71 Cal. Comp. Cases 155].) The trial record contains no evidence, or information, that explains the factual or legal basis for having applicant undergo a medical-legal evaluation by Dr. Williams. Thus, we agree with the WCJ that:

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he worked throughout the year and was not seasonal, and lack of employer evidence to establish seasonal employment

From the decision · page 15As to seasonal employment, the Applicant testified in his deposition that he worked throughout the year, but the question was not directly as to which months. He also noted that he was washing the trailer as the season was over, but he did not say that "his" season was over. A review of Dr. Hill's initial QME report makes no indication of the Applicant being a seasonal employee. There were no employment records introduced into evidence to establish a seasonal work period, nor was there any testimony from the employer on the point. As the burden is on the Defendant to establish seasonal employment, it is found that burden is not met and the employee is not seasonal.

Medical recordsfavours Applicant prevailed

Dr. Hill's explanation that he did not rely on Dr. Schroeder's opinions but used measurements from Dr. Schroeder's flexion/extension X-rays and performed his own analysis

From the decision · page 10Dr. Hill assessed whole person impairment in this matter for the cervical and lumbar spine based on alteration of motion segment integrity, and those measurements were based on the flexion/extension x-rays. The Petition for Reconsideration argues that, "Dr. Hill has rejected the objective data and instead relied upon the non-scientific and non-certified opinions of Chiropractor Schroeder." (Petition for Reconsideration, page 6, lines 12-14.) This is not an accurate representation of the facts. Dr. Hill did not reject any objective data. Instead he explained how the different studies are different tools that allow for different analysis. Dr. Hill has not relied upon the "opinions" of Dr. Schroeder at all. Dr. Hill testified in his deposition that he is, "not interested in Dr. Schroeder's interpretation. I appreciate everybody's input, because I am fallible... but I'm not sending the patient to Dr. Schroeder necessarily for the pathological read, because ultimately I am the one responsible for doing the analysis on it and I do the analysis." (Joint Exhibit Z, page 29, line 21 to page 30, line 6.) Dr. Hill explained that he did not rely on non-certified opinions of Dr. Schroeder, but rather took measurements from Dr. Schroeder's studies, and then Dr. Hill interpreted those.

ADJ10499216 · March 16, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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