ADJ11505778 · March 25, 2022

The PQME report was found to be flawed and not substantial evidence due to failure to address cumulative trauma and job duties, leading to rescission of the prior order and remand for further proceedings.

From the decision · page 3[35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)

PQME report failed to address cumulative trauma and job duties relevant to injury causation.

Favours Applicant prevailed

This flaw undermined the reliability of the PQME report as substantial evidence, leading to rescission and remand.

From the decision · page 3In this case, the PQME's opinion is based on an incorrect understanding of his role as a medical-legal evaluator. Dr. Schwartz solely addressed causation of the claimed specific injury and did not address applicant's job duties or whether he required medical treatment as a result of repetitive activities. Instead of addressing both claims of injury, the PQME made general statements about "multiple scientific studies in the general population absent all injury," and speculated about work-relatedness "if any actual injury was found." (Exh. B, p. 13.) Given the glaring deficiencies in the PQME's analysis, his reporting cannot be relied on to determine whether applicant sustained an industrial injury.

The patient's symptoms are explained by common degenerative changes and not by a specific industrial injury; the patient worked full duty for years after the alleged injury, indicating any injury was minor or trivial.

The PQME report was found flawed for not addressing cumulative trauma and job duties, thus not substantial evidence.

From the decision · page 2Dr. Shwartz offered the following opinion on causation:

Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113

A lien claimant must establish that the applicant sustained an industrial injury to recover medical treatment lien.

Lien claimant holds the burden of proof to establish all elements necessary to establish its claim.

From the decision · page 2A lien claimant holds the burden of proof to establish all elements necessary to establish its claim. (See Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, 1117 (Appeals Board en banc).) Thus, to recover for a medical treatment lien, a lien claimant must establish that applicant sustained an industrial injury.

Rosas v. Workers' Comp. Appeals Bd.

A medical opinion must be predicated on reasonable medical probability to constitute substantial evidence.

Substantial medical evidence requires reasonable medical probability.

From the decision · page 3Applicant can establish that his job involved repetitive mentally or physically traumatic activities using lay evidence, including testimony from the applicant. However, the question of whether repetitive traumatic activities caused injury or a need for medical treatment can only be established with substantial medical evidence. To constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (Rosas v. Workers' Comp. Appeals Bd., supra, 16 Cal.App.4th 1692, 1700-1702, 1705 [58 Cal.Comp.Cases 313].) "A medical report predicated upon an incorrect legal theory and devoid of relevant factual basis, as well as a medical opinion extended beyond the range of the physician's expertise, cannot rise to a higher level than its own inadequate premises." (Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794 [33 Cal Comp.Cases 358, 363].) A medical opinion is not substantial evidence if it is based on surmise, speculation. conjecture, or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93, 97.)

PQME report did not address cumulative trauma or job duties, undermining its reliability

From the decision · page 3In this case, the PQME's opinion is based on an incorrect understanding of his role as a medical-legal evaluator. Dr. Schwartz solely addressed causation of the claimed specific injury and did not address applicant's job duties or whether he required medical treatment as a result of repetitive activities. Instead of addressing both claims of injury, the PQME made general statements about "multiple scientific studies in the general population absent all injury," and speculated about work-relatedness "if any actual injury was found." (Exh. B, p. 13.) Given the glaring deficiencies in the PQME's analysis, his reporting cannot be relied on to determine whether applicant sustained an industrial injury.