ADJ11649621 — California WCAB decision

ADJ11649621 · January 21, 2022

The Appeals Board granted the Petition for Reconsideration, rescinded the Findings of Facts and Orders issued by the WCJ on November 12, 2021, and returned the matter to the trial level for further proceedings consistent with the opinion.

Issues decided

Medical opinions weighed

Authorities named

District office

Sacramento

What the panel ordered

Applicant sought removal of the Findings of Facts and Orders issued by the WCJ on November 12, 2021, challenging the finding that the QME report was not substantial evidence and the order to develop the record with another physician. The WCJ had recommended denial of the removal petition. The Appeals Board granted reconsideration, rescinded the F&O, and returned the matter to the trial level for further proceedings.

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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.

Reconsideration / removalApplicant prevailedneck · back · bilateral wrists · bilateral upper extremities · bilateral knees · left hip

The Appeals Board found that the WCJ erred in finding the QME report was not substantial evidence and that returning to the QME for further development would be fruitless. The Board ordered the matter returned to the trial level for further development of the record, initially with the existing QME, then potentially an AME or regular physician if needed.

From the decision · page 1Applicant seeks removal of the Findings of Facts and Orders (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 12, 2021. By the F&O, the WCJ found that the reporting of the qualified medical evaluator (QME) did not constitute substantial evidence and returning to the QME for development of the record would be "fruitless." Submission of the matter was vacated and the parties were ordered to advise the WCJ if they could agree to an agreed medical evaluator (AME) to replace the QME. If the parties could not agree to an AME, the WCJ was to appoint a regular physician per Labor Code1 section 5701. (Lab. Code, § 5701.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence; work need only be a contributing cause. Medical opinion must be based on reasonable medical probability, pertinent facts, adequate examination and history, and set forth reasoning to constitute substantial evidence.

The Board found Dr. Ryan's causation opinions met the standard for substantial evidence on injury AOE/COE, but her apportionment opinions did not.

From the decision · page 7The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) It is sufficient to show that work was a contributing cause of the injury. (See Clark, supra, 61 Cal.4th at p. 298; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) The burden of proof "manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].)

McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138

The Appeals Board has discretionary authority under Labor Code section 5701 to develop the record when the medical record is not substantial evidence or when necessary to adjudicate issues in dispute. The preferred procedure is to allow supplementation by existing physicians before appointing new physicians or AMEs.

The Board ordered the matter returned to the trial level for further development initially with the existing QME, then potentially an AME or regular physician if needed.

From the decision · page 9The Appeals Board has the discretionary authority under section 5701 to develop the record when the medical record is not substantial evidence or when necessary to adjudicate the issues in dispute. (See Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Per McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138, 142 (Appeals Board en banc), the preferred procedure for developing a deficient record is to first allow supplementation of the medical record by the physicians who have already reported in the case. In McDuffie, the WCJ had found the reporting of the existing physicians was inadequate and appointed a new physician to evaluate applicant. The en banc panel stated in response:

ADJ11649621 · January 21, 2022

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