What the panel ordered
WCAB rescinded the November 25, 2020 Findings and Award and substituted a new Findings and Award affirming 38% partial permanent disability without apportionment for orthopedic injuries; deferred issues of AOE/COE and permanent disability for psyche/cognitive injury and head injury; deferred attorney fees and penalty petitions
Petition for Reconsideration and Petition for Removal filed by defendant challenging the November 25, 2020 Findings of Fact and Award by WCJ; WCJ deferred issue of injury AOE/COE to psyche/cognitive defects; WCJ found 38% orthopedic permanent disability without apportionment; WCJ Report recommended denial of defendant's petition; WCAB rescinded and substituted Findings and Award affirming 38% PD and deferring psyche/cognitive injury issues
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.
The WCAB deferred the issue of AOE/COE for the psyche/cognitive injury due to insufficient evidence and the need for further record development.
From the decision · page 1In a single pleading, defendant filed a Petition for Reconsideration & Petition for Removal challenging the November 25, 2020 Findings of Fact and Award issued by the workers' compensation administrative law judge (WCJ). Therein, the WCJ found that applicant sustained admitted industrial injury to his right shoulder, head, back, and ribs while employed as horse exerciser/rider on December 1, 2015, causing 38% orthopedic permanent disability without apportionment. The WCJ deferred the issue of injury arising out of and occurring in the course of employment (AOE/COE) to the psyche/cognitive defects. Despite deferring the issue of causation of the psyche/cognitive injury, the WCJ made an award of 38% permanent disability.
The WCAB found the primary treating physician Dr. Mirza's report constituted substantial medical evidence and properly supported the 38% permanent disability rating, rejecting the PQME Dr. Campbell's report due to incomplete history and inadequate analysis of activities of daily living per AMA Guides.
From the decision · page 2For the reasons stated in the WCJ's report, we agree that the opinion of Dr. Mirza is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
PTP Dr. Mirza's report included a complete history and analysis of impact on activities of daily living per AMA Guides
Favours Applicant prevailed
This report met the criteria for substantial medical evidence and supported the 38% permanent disability rating
From the decision · page 101. PTP Dr. Mirza has Analyzed the Impact of Injury on ADLs
PQME Dr. Campbell's report lacked a viable grasp of the mechanism of injury and did not analyze activities of daily living per AMA Guides
Favours Defendant prevailed
This led to rejection of his report as substantial medical evidence and rejection of his permanent disability rating
From the decision · page 8In his report dated 6/14/2019 at page 3, the PQME Dr. Campbell stated the followingsentence for the "History of Injury":
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.
Provided a comprehensive report with a complete history, analysis of mechanism of injury consistent with applicant's testimony, and detailed analysis of impact on activities of daily living supporting a 38% permanent disability rating.
Report met criteria for substantial medical evidence under LC 4628 and 8 CCR 10682, including history, examination, diagnosis, and reasoning.
From the decision · page 8"The patient states that while at work on 12/1/2015 he was thrown from ahorse."
Report did not constitute substantial medical evidence due to incomplete and inaccurate history of injury and failure to properly analyze activities of daily living per AMA Guides.
Did not take a complete history and misunderstood mechanism of injury, leading to inaccurate diagnoses and WPI analysis.
From the decision · page 8In his report dated 6/14/2019 at page 3, the PQME Dr. Campbell stated the followingsentence for the "History of Injury":
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922
Medical opinion must be predicated on reasonable medical probability and based on pertinent facts and adequate examination and history to constitute substantial medical evidence
The WCAB relied on this standard to affirm the PTP Dr. Mirza's report as substantial medical evidence and reject the PQME Dr. Campbell's report
From the decision · page 2For the reasons stated in the WCJ's report, we agree that the opinion of Dr. Mirza is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70
LC 4628 and 8 CCR 10682 set forth required elements for a medical-legal report to be substantial medical evidence
The WCAB applied these to evaluate the reports of Dr. Mirza and Dr. Campbell
From the decision · page 7LC § 4628 and 8 CCR § 10682 (formerly 10606) set forth the following list of items thatmust be included in a medical-legal report in order for it to be considered "Substantial MedicalEvidence" upon which an evaluating physician may rely for his or her determination: LC § 4628 (a):
Labor Code 4660.1
LC 4660.1 requires use of AMA Guides for permanent disability rating for injuries post 1/1/2013
The WCAB applied this standard to require proper analysis of impact on activities of daily living per AMA Guides for PD rating
From the decision · page 9For this date of injury post 1/1/2013, LC 4660.1 provides that the AMA Guides must be used to calculate level of permanent disability. Essentially, the metrics of the AMA Guides are driven by the impact of applicant's injury on his Activities of Daily Living (ADLs). See Table 1-2 at page 4 of the AMA Guides which states:
Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274
Removal is an extraordinary remedy granted only if petitioner shows substantial prejudice or irreparable harm and reconsideration is inadequate
The WCAB applied this standard to deny defendant's petition for removal
From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, based upon the WCJ's analysis of the merits of petitioner's arguments, we are not persuaded that substantial prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy if the matter ultimately proceeds to a final decision adverse to petitioner.
What proof carried it
The evidence the panel weighed, by kind.
PTP Dr. Mirza's report included a complete history and analysis of impact on activities of daily living per AMA Guides
From the decision · page 101. PTP Dr. Mirza has Analyzed the Impact of Injury on ADLs
PQME Dr. Campbell's report lacked a viable grasp of the mechanism of injury and did not analyze activities of daily living per AMA Guides
From the decision · page 8In his report dated 6/14/2019 at page 3, the PQME Dr. Campbell stated the followingsentence for the "History of Injury":
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