What the panel ordered
Petition for Reconsideration granted; final decision deferred pending further review of the merits and the record.
Applicant sought reconsideration of the WCJ's Findings and Order dated August 8, 2023, which found no industrial injury and ordered applicant take nothing. The Appeals Board granted reconsideration and deferred a final decision pending further review of the merits and the record.
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 found no industrial injury based on lack of substantial evidence, but the Appeals Board found the WCJ did not conduct a full Tensfeldt analysis or address admissibility of Dr. Smith's report, and further record development may be appropriate.
From the decision · page 3Code, § 5705 ["The burden of proof rests upon the party or lien claimant holding the affirmative of the issue."].) Therefore, the burden of proof rests with the employer to produce evidence that applicant was convicted under section 1871.4, and thus, pursuant to section 1871.5, its liability for compensation "owed or received as a result of" that conviction should be reduced or barred. Here, the WCJ did not conduct a full Tensfeldt analysis; instead, she concluded that applicant did not sustain industrial injury based on the lack of substantial evidence. (See Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ did not conduct a full Tensfeldt analysis or address the admissibility of Dr. Smith's QME report.
Favours neutral
This omission led the Appeals Board to grant reconsideration and defer a final decision, indicating the record was not adequately developed for a final determination.
From the decision · page 4As stated above, Escobedo, supra, articulates the basis for consideration of whether a medical opinion is substantial evidence. We observe that statutory and case law favor the admissibility of medical reports provided they were obtained in accordance with the Labor Code. (See Lab. Code, § 4062.3(a); 4064(d), 5703(a), 5708; e.g., Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231 [78 Cal.Comp.Cases 1209].) Here, the WCJ did not make a finding as to the admissibility of Dr. Smith's reporting and did not provide any explanation in her Opinion as to whether she excluded the reporting, and if so, the basis for excluding the reporting.
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.
Dr. Smith's reporting was rejected by the WCJ for not having an accurate history, but the Appeals Board noted the WCJ did not make a finding as to admissibility or provide an explanation for exclusion.
The WCJ rejected Dr. Smith's report for lack of accurate history, but the Appeals Board found the WCJ did not address admissibility or explain exclusion.
From the decision · page 4As stated above, Escobedo, supra, articulates the basis for consideration of whether a medical opinion is substantial evidence. We observe that statutory and case law favor the admissibility of medical reports provided they were obtained in accordance with the Labor Code. (See Lab. Code, § 4062.3(a); 4064(d), 5703(a), 5708; e.g., Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231 [78 Cal.Comp.Cases 1209].) Here, the WCJ did not make a finding as to the admissibility of Dr. Smith's reporting and did not provide any explanation in her Opinion as to whether she excluded the reporting, and if so, the basis for excluding the reporting.
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, 621 (Appeals Board en banc)
To constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, not be speculative, be based on pertinent facts and an adequate examination and history, and set forth reasoning in support of its conclusions.
Applied to determine whether Dr. Smith's report constituted substantial evidence for industrial injury.
From the decision · page 3(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 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).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].) According to the Minutes of Hearing/Summary of Evidence at the trial on April 12, 2023, defendant raised Labor Code section 4628(e) and contended that the lack of an accurate history rendered Dr. Smith's reporting inadmissible. (Lab. Code, § 4628(e).) Labor Code section 4628 is an anti-ghostwriting statute, and a physician's failure to comply with the statute renders a report
What proof carried it
The evidence the panel weighed, by kind.
The WCJ rejected Dr. Smith's QME report for lack of accurate history, but did not make a finding as to admissibility or explain exclusion.
From the decision · page 4As stated above, Escobedo, supra, articulates the basis for consideration of whether a medical opinion is substantial evidence. We observe that statutory and case law favor the admissibility of medical reports provided they were obtained in accordance with the Labor Code. (See Lab. Code, § 4062.3(a); 4064(d), 5703(a), 5708; e.g., Valdez v. Workers' Comp. Appeals Bd. (2013) 57 Cal.4th 1231 [78 Cal.Comp.Cases 1209].) Here, the WCJ did not make a finding as to the admissibility of Dr. Smith's reporting and did not provide any explanation in her Opinion as to whether she excluded the reporting, and if so, the basis for excluding the reporting.
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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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