What the panel ordered
The WCAB granted reconsideration, rescinded the March 4, 2022 Findings and Order, and substituted a new Findings and Order finding injury AOE/COE to the lumbar spine, left shoulder, and left elbow from September 1, 2017 through October 17, 2018; the matter was returned to the trial level for further proceedings.
Applicant sought reconsideration of the WCJ's Findings and Order issued March 4, 2022, which denied the injury claim; the WCJ found defendant's denial untimely but successfully rebutted the presumption of compensability and found no injury AOE/COE.
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 WCAB found that the QME Dr. Gowey's well-reasoned medical opinion constituted substantial evidence that applicant sustained cumulative injury AOE/COE to lumbar spine, left shoulder, and left elbow, rejecting the pre-employment medical exam as insufficient evidence.
From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on March 4, 2022, wherein the WCJ found in pertinent part that defendant's denial of applicant's injury claim was untimely under Labor Code section 5402, that defendant successfully rebutted the Labor Code section 5402(b) presumption of compensability, and that applicant did not sustain injury arising out of and occurring in the course of employment (AOE/COE) to his neck, bilateral shoulders, bilateral elbows, lumbar spine, and left leg, while employed by defendant; the WCJ ordered that applicant take nothing by way of his injury claim.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Gowey's medical opinion that applicant sustained cumulative injury to lumbar spine, left shoulder, and left elbow causally related to employment
Favours Applicant prevailed
This opinion was well-reasoned, based on examination, history, and extensive medical records, and was relied upon by the Board as substantial evidence supporting injury AOE/COE.
From the decision · page 2On January 6, 2020, QME Dr. Gowey evaluated applicant. Dr. Gowey examined applicant, took a history and reviewed the medical record. The diagnoses were: lumbar sprain, non-verifiable radiculitis left lower extremity, cervical sprain-subsided, rotator cuff tendinitis left shoulder, and medial epicondylitis left elbow. (Joint Exh. TT, Dr. Gowey, January 6, 2020, p. 6.) Dr. Gowey concluded that applicant had reached maximum medical improvement/permanent and stationary status, and that the primary cause of applicant's lumbar spine, left shoulder, and left elbow conditions was his employment as a truck driver for defendant. (Joint Exh. TT, p. 11.)
Pre-employment medical examination report did not comply with treating physician or medical-legal report requirements and was not properly translated or interpreted for applicant
Favours Applicant prevailed
The Board found this report insufficient as evidence to rebut the presumption of compensability, favoring applicant's claim of injury AOE/COE.
From the decision · page 4Regarding the driver certification medical examination/pre-employment medical exam: We first note that the Medical Examination Report Form (Def. Exh. I) does not comply with the requirements of a treating physician's report (Cal. Code Regs., tit. 8, § 10682), nor does it comply with the requirements of a medical-legal report. (Lab. Code, § 4628.)
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.
Applicant sustained cumulative injury to lumbar spine, left shoulder, and left elbow causally related to employment as truck driver for defendant.
Dr. Gowey examined applicant, reviewed extensive medical records, and provided a well-reasoned opinion that was found to be substantial evidence supporting injury AOE/COE.
From the decision · page 2On January 6, 2020, QME Dr. Gowey evaluated applicant. Dr. Gowey examined applicant, took a history and reviewed the medical record. The diagnoses were: lumbar sprain, non-verifiable radiculitis left lower extremity, cervical sprain-subsided, rotator cuff tendinitis left shoulder, and medial epicondylitis left elbow. (Joint Exh. TT, Dr. Gowey, January 6, 2020, p. 6.) Dr. Gowey concluded that applicant had reached maximum medical improvement/permanent and stationary status, and that the primary cause of applicant's lumbar spine, left shoulder, and left elbow conditions was his employment as a truck driver for defendant. (Joint Exh. TT, p. 11.)
Provided reports supporting that applicant sustained injury AOE/COE.
Reports from Dr. Haronian were considered substantial evidence supporting injury AOE/COE.
From the decision · page 1Applicant contends that the November 17, 2018 pre-employment medical evaluation (Def. Exh. I) does not rebut the Labor Code section 5402(b) presumption, and that the reports from orthopedic qualified medical examiner (QME) Ronald J Gowey, M.D., and secondary physician Edwin Haronian, M.D., are substantial evidence that applicant sustained injury AOE/COE.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627
An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record.
The Board reviewed the entire record and found Dr. Gowey's well-reasoned medical opinion constituted substantial evidence supporting injury AOE/COE.
From the decision · page 3An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code § 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16].) When a physician's report is well- reasoned, is not speculative, is based on an adequate history and examination, and sets forth the reasoning behind the physician's opinion, not merely his or her conclusions; the report constitutes substantial evidence. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)
Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372
The Appeals Board may rely on the medical opinion of a single physician unless it is based on surmise, speculation, conjecture, or guess.
The Board found no evidence that Dr. Gowey's opinion was speculative, thus it constituted substantial evidence.
From the decision · page 4It is well settled that the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137 [46 Cal.Comp.Cases 913.) Having reviewed the entire trial record, we see no evidence indicating that Dr. Gowey's opinions are based on "surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd., supra.) Therefore, his reports and deposition testimony constitute substantial evidence.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Gowey's well-reasoned medical opinion based on examination, history, and extensive medical records review
From the decision · page 3Here, as noted above, Dr. Gowey examined applicant, took a history, reviewed the medical record (approximately 300 pages), and concluded that applicant had sustained a cumulative injury to his lumbar spine, left shoulder, and left elbow. (Joint Exh. TT, p. 11.) Dr. Gowey's review of
Pre-employment medical examination report did not comply with treating physician or medical-legal report requirements and was not properly translated or interpreted for applicant
From the decision · page 4Regarding the driver certification medical examination/pre-employment medical exam: We first note that the Medical Examination Report Form (Def. Exh. I) does not comply with the requirements of a treating physician's report (Cal. Code Regs., tit. 8, § 10682), nor does it comply with the requirements of a medical-legal report. (Lab. Code, § 4628.)
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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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