What the panel ordered
Petition for reconsideration granted; original Findings and Order rescinded and substituted; applicant's claim of industrial injury for dizziness and psyche denied
Petition for reconsideration granted, WCJ decision rescinded and substituted with new Findings and Order
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 WCJ and WCAB found no substantial medical evidence supporting the claim that dizziness and psychological symptoms arose out of and in the course of employment, relying on AME opinions and rejecting the applicant's expert who did not review medical records.
From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the Report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's Report, which we adopt and incorporate, and for the reasons stated below, we will grant reconsideration, rescind the WCJ's decision and substitute it with a new Findings and Order, that strikes Findings of Fact number two (2)1 and admits applicant's Exhibit 1 (Medical report from Gayle Windman, Ph.D., dated March 28, 2022), which the WCJ discusses in the Report. We will otherwise restate the WCJ's findings and order.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Agreed Medical Examiners found no physiological basis for dizziness to be industrial from jaw surgery
Favours Defendant prevailed
This led to finding dizziness non-industrial and psychological symptoms non-industrial as they arose from dizziness
From the decision · page 5the applicant was examined by Agreed Medical Examiner (AME) David Scharf MD (neurologist), AME Andrew Berman MD (otorhinolaryngologist), and AME Burton Sobelman DDS (dentistry / temporomandibular joint orthopedics). All three Agreed Medical Examiners were unable to find any causal relationship between the applicant's 07/22/2020 jaw surgery and her claims of dizziness (vertigo). They found no physiological basis for her to develop dizziness (vertigo) as a result of the type of jaw surgery performed on 07/22/2020. As such, it was determined that the applicant's claim of dizziness (vertigo) was non-industrial. Because the dizziness (vertigo) was non-industrial and the psychological symptoms arose from the dizziness (vertigo), the psychological symptoms were also determined to be non-industrial.
Applicant did not provide medical records to Dr. Gail Windman, undermining her opinion
Favours Defendant prevailed
Lack of medical record review led to rejection of her opinion as substantial evidence
From the decision · page 6Applicant contends that if the WCJ was unable to rely on the report of Dr. Gail Windman due to her failure to review the applicant's medical history, the WCJ should have developed the record. However, the burden of proof regarding injury AOE/COE rests with the applicant. It was the applicant who procured the opinion of Dr. Windman and there is nothing to indicate that there wasn't ample opportunity for the applicant to provide Dr. Windham with the applicant's complete medical records. The applicant chose not to provide these records to Dr. Windman.
No medical evidence supports psychological symptoms predating jaw surgery; record supports symptoms developed after surgery
Favours Defendant prevailed
Undermines applicant's claim that psychological symptoms arose independently of dizziness and jaw surgery
From the decision · page 7Applicant had the opportunity to correct any perceived defect in the medical history provided by PQME Galarza and did not do so. The report from Dr. Galarza does not require further development as the trial issue of injury AOE/COE is completely addressed by his 05/17/2022 report. The applicant claims that her psychological symptoms predated her jaw surgery but does not cite to any evidence or any part of the medical record that would support that claim. The medical record actually supports the opposite proposition that the psychological symptoms developed only after.
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.
Psychological symptoms caused by dizziness (vertigo); psychological symptoms industrial only if dizziness is industrial.
Complete opinion on causation of psychological symptoms related to dizziness; report dated 05/17/2022.
From the decision · page 5The PQME psychiatrist Dr. Steven Galarza (report dated 05/17/2022 exhibit A) determined that the applicant's psychological symptoms were caused by the dizziness (vertigo). He further concluded that if the dizziness (vertigo) was found to be industrial, then the psychological symptoms would also be industrial.
No causal relationship between jaw surgery and dizziness; dizziness non-industrial.
Agreed Medical Examiner opinion rejecting industrial causation of dizziness.
From the decision · page 5the applicant was examined by Agreed Medical Examiner (AME) David Scharf MD (neurologist), AME Andrew Berman MD (otorhinolaryngologist), and AME Burton Sobelman DDS (dentistry / temporomandibular joint orthopedics). All three Agreed Medical Examiners were unable to find any causal relationship between the applicant's 07/22/2020 jaw surgery and her claims of dizziness (vertigo). They found no physiological basis for her to develop dizziness (vertigo) as a result of the type of jaw surgery performed on 07/22/2020. As such, it was determined that the applicant's claim of dizziness (vertigo) was non-industrial. Because the dizziness (vertigo) was non-industrial and the psychological symptoms arose from the dizziness (vertigo), the psychological symptoms were also determined to be non-industrial.
No causal relationship between jaw surgery and dizziness; dizziness non-industrial.
Agreed Medical Examiner opinion rejecting industrial causation of dizziness.
From the decision · page 5the applicant was examined by Agreed Medical Examiner (AME) David Scharf MD (neurologist), AME Andrew Berman MD (otorhinolaryngologist), and AME Burton Sobelman DDS (dentistry / temporomandibular joint orthopedics). All three Agreed Medical Examiners were unable to find any causal relationship between the applicant's 07/22/2020 jaw surgery and her claims of dizziness (vertigo). They found no physiological basis for her to develop dizziness (vertigo) as a result of the type of jaw surgery performed on 07/22/2020. As such, it was determined that the applicant's claim of dizziness (vertigo) was non-industrial. Because the dizziness (vertigo) was non-industrial and the psychological symptoms arose from the dizziness (vertigo), the psychological symptoms were also determined to be non-industrial.
No causal relationship between jaw surgery and dizziness; dizziness non-industrial.
Agreed Medical Examiner opinion rejecting industrial causation of dizziness.
From the decision · page 5the applicant was examined by Agreed Medical Examiner (AME) David Scharf MD (neurologist), AME Andrew Berman MD (otorhinolaryngologist), and AME Burton Sobelman DDS (dentistry / temporomandibular joint orthopedics). All three Agreed Medical Examiners were unable to find any causal relationship between the applicant's 07/22/2020 jaw surgery and her claims of dizziness (vertigo). They found no physiological basis for her to develop dizziness (vertigo) as a result of the type of jaw surgery performed on 07/22/2020. As such, it was determined that the applicant's claim of dizziness (vertigo) was non-industrial. Because the dizziness (vertigo) was non-industrial and the psychological symptoms arose from the dizziness (vertigo), the psychological symptoms were also determined to be non-industrial.
Psychological injury claimed to arise from orthopedic injuries, but opinion rejected for lack of medical record review and reliance on inconsistent self-reported history.
Did not review medical records; relied on applicant's history inconsistent with medical records; opinion not substantial medical evidence.
From the decision · page 6Petitioner next argues that this WCJ should have relied upon the medical opinion of Dr. Gail Windman (exhibit 1) and found that the applicant had suffered a psychological injury arising out of and in the course of her employment. As stated in the Opinion on Decision, the undersigned did not find the medical opinion of Dr. Gail Windman to be a substantial medical opinion. Dr. Windman did not review ANY medical records related to the applicant's injury. Given the substantial medical records that exist in this case, Dr. Wreviewas obligated to reviewed this history in order to come to an informed and substantial medical opinion regarding causation of the applicant's alleged psychological symptoms.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3208.3
Burden of proof on applicant to establish injury arising out of and in the course of employment (AOE/COE)
Applicant failed to present substantial evidence to meet burden of proof for dizziness and psychological injury AOE/COE
From the decision · page 2We agree with the WCJ that there is no duty to develop the record here to save applicant from the lack of due diligence to present evidence in support of the claimed injury of dizziness and psyche. (See Lab. Code, § 5502(d)(3) 3202.5; McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138, 141 (Appeals Board en banc); Lozano v. Workers' Comp. Appeals Bd. (2002) 67 Cal.Comp.Cases 970 (writ den.).)
Labor Code section 5502(d)(3)
WCJ has discretion to develop record but not to rescue party lacking sufficient evidence
WCJ declined to develop record further as applicant failed to provide sufficient evidence and did not correct alleged inaccurate history
From the decision · page 7Where there is insufficient evidence presented to the WCJ to decide an issue, the WCJ has the authority to develop the record. However, the ability to further develop the record is not to be used to rescue a party that does not present evidence sufficient to meet their burden of proof. Development of the record under these circumstances would violate Labor Code Section 5502(d)(3). 1
What proof carried it
The evidence the panel weighed, by kind.
Applicant did not provide medical records to Dr. Gail Windman, undermining the reliability of her opinion
From the decision · page 6Applicant contends that if the WCJ was unable to rely on the report of Dr. Gail Windman due to her failure to review the applicant's medical history, the WCJ should have developed the record. However, the burden of proof regarding injury AOE/COE rests with the applicant. It was the applicant who procured the opinion of Dr. Windman and there is nothing to indicate that there wasn't ample opportunity for the applicant to provide Dr. Windham with the applicant's complete medical records. The applicant chose not to provide these records to Dr. Windman.
No medical evidence supports psychological symptoms predating jaw surgery; medical record supports symptoms developed after surgery
From the decision · page 7Applicant had the opportunity to correct any perceived defect in the medical history provided by PQME Galarza and did not do so. The report from Dr. Galarza does not require further development as the trial issue of injury AOE/COE is completely addressed by his 05/17/2022 report. The applicant claims that her psychological symptoms predated her jaw surgery but does not cite to any evidence or any part of the medical record that would support that claim. The medical record actually supports the opposite proposition that the psychological symptoms developed only after.
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About this page
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