What the panel ordered
Order Amending Findings of Fact, Awards and Orders issued May 5, 2020 rescinded; matter returned to trial level for further proceedings consistent with WCAB en banc opinion.
Petition for reconsideration filed by defendant after WCJ's Findings of Fact, Awards and Orders and subsequent amendment; WCJ Report and Recommendation filed; matter before WCAB panel for decision after reconsideration.
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's addition of impairments to both hips was not supported by substantial medical evidence because the QME did not adequately analyze the impact on activities of daily living (ADLs) as required to rebut the Combined Values Chart (CVC). The WCJ misapplied Hikida by excluding apportionment despite successful hip surgeries. Defendant failed to prove apportionment due to lack of substantial evidence from the QME.
From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Peter Newton's opinion lacked substantial medical evidence as it did not adequately explain the impact of bilateral hip impairments on activities of daily living (ADLs) to rebut the Combined Values Chart (CVC).
Favours Defendant prevailed
Without this detailed analysis, the WCJ's addition of impairments to both hips was unsupported, leading to remand for further proceedings.
From the decision · page 8overlapping ADLs.7 Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.
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.
Concluded applicant would have significantly more limitations after bilateral hip replacements but provided little analysis on activities of daily living (ADLs) impact; opinion lacked substantial evidence to rebut Combined Values Chart (CVC).
From the decision · page 8overlapping ADLs.7 Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.
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
A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning supporting conclusions to constitute substantial evidence.
Applied to reject QME opinion lacking detailed ADL analysis to rebut Combined Values Chart (CVC).
From the decision · page 8We cannot emphasize enough that to constitute 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, 621 (Appeals Board en banc), (emphasis added).) The term `synergy' is not a "magic word" that immediately rebuts the use of the CVC. Instead, a physician must set forth a reasoned analysis explaining how and why synergistic ADL overlap exists. If parties are searching for a magic word to use during a doctor's deposition, that word is "Why?". Rather than focusing on whether a specific term, including the term synergy, was used, it is imperative that parties focus on an analysis that applies critical thinking based on the principles articulated in Escobedo to support a conclusion based on the facts of the case. Such an analysis must include a detailed description of the impact of ADLs and how those ADLs interact.
What proof carried it
The evidence the panel weighed, by kind.
QME's opinion lacked detailed analysis of activities of daily living (ADLs) impact to support addition of impairments; opinion was conclusory and insufficient to rebut Combined Values Chart (CVC).
From the decision · page 8overlapping ADLs.7 Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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