ADJ12897344 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant challenging the substantiality of medical evidence; WCJ report recommending denial of petition; WCAB panel decision denying reconsideration.

Read the official decision →

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.

Substantial evidence / credibilityDefendant prevailedlow back · neck · left shoulder · right knee · right shoulder

The WCJ and WCAB found Dr. Oehlschlaeger's medical opinions to constitute substantial medical evidence based on his detailed evaluation, physical examination, and review of medical records, despite Petitioner's contentions of conclusory opinions and lack of explanation.

From the decision · page 5A. Substantiality Petitioner avers the findings are not justified by the evidence, contending Dr. Oehlschlaeger opinions do not constitute substantial medical evidence. 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. (Heggin v. Workers' Comp. Appeals Ed. (1971) 4 Cal.3d 162, 169) Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or guess. (Id.) Petitioner contends Dr. Oehlschlaeger opinion that there exists a "... reasonable medical probability... arose out of and occurred during the course of employment at Bush Construction from the heavy physical labor required,...

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Nathan Oehlschlaeger's detailed medical evaluation, including interview, physical examination, and review of medical records, supports the finding of injury causation and compensability.

Favours Defendant prevailed

This opinion was relied upon by the WCJ and WCAB as substantial medical evidence to deny the petition for reconsideration.

From the decision · page 3Facts On November 14, 2019, Applicant filed Application alleging injury to the neck, back, bilateral shoulders and right knee as a result of cumulative trauma due to day-to day activities while employed as a carpenter for employer Bush Construction. Injurious exposure to the right shoulder has been accepted, but Petitioner denies Applicant's claim of injury to the neck, back, left shoulder and right knee as a result of cumulative trauma while employed for Bush Construction. [Minutes of Hearing, 10/20/2021, page 2, lines 4-9] Nathan Oehlschlaeger, D.C. serves as the Panel Qualified Medical Evaluator to evaluate Applicant's alleged cumulative trauma injury. Dr. Oehlschlaeger's initial report demonstrates he interviewed Applicant, documenting Applicant's medical and employment history, alleged mechanism of injurious exposure, physical complaints, prior injuries and limitations in activities of daily living. [Joint Exhibit AAA, Oehlschlaeger,

Applicant's credible testimony describing heavy physical labor duties and worsening symptoms during employment was not rebutted by Defendant.

Favours Defendant prevailed

Supported the credibility and substantiality of Dr. Oehlschlaeger's opinion and the finding of injury causation.

From the decision · page 6Applicant did not deny prior symptomology in his neck, right knee, low back, and left shoulder, due to years of heavy labor, rather described worsening symptomology in these body parts while employed at Bush Construction, due heavier work. Dr. Oehlschlaeger opined that the heavy nature of Applicant's work at Bush Construction did at least partially contribute to increasing impairment. [Joint CCC, Oehlschlaeger Depo., 8/25/21, p. 11, lines 8-17] Dr. Oehlschlaeger found Applicant to be credible when describing his complaints. [Joint CCC, Oehlschlaeger Depo., 8/25/21, p. 16, lines 8-9] Defendant proffered no rebuttal evidence, by way of testimony or documents, to demonstrate Applicant's work duties as a carpenter as described to Dr. Oehlschlaeger, which Dr. Oehlschlaeger determined to constitute of heavy work contributing to medical conditions, were factually inaccurate.

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.

QMERelied upon · Chiropractic

Opined that Applicant's current condition arose out of and occurred in the course of employment at Bush Construction, based on detailed interview, physical examination, and review of medical records, despite preexisting injuries.

Dr. Oehlschlaeger's opinion was found to be substantial medical evidence supporting injury causation and compensability.

From the decision · page 3Facts On November 14, 2019, Applicant filed Application alleging injury to the neck, back, bilateral shoulders and right knee as a result of cumulative trauma due to day-to day activities while employed as a carpenter for employer Bush Construction. Injurious exposure to the right shoulder has been accepted, but Petitioner denies Applicant's claim of injury to the neck, back, left shoulder and right knee as a result of cumulative trauma while employed for Bush Construction. [Minutes of Hearing, 10/20/2021, page 2, lines 4-9] Nathan Oehlschlaeger, D.C. serves as the Panel Qualified Medical Evaluator to evaluate Applicant's alleged cumulative trauma injury. Dr. Oehlschlaeger's initial report demonstrates he interviewed Applicant, documenting Applicant's medical and employment history, alleged mechanism of injurious exposure, physical complaints, prior injuries and limitations in activities of daily living. [Joint Exhibit AAA, Oehlschlaeger,

otherGiven great weight

Noted Chiari Malformation on MRI and recommended neurosurgical consultation; no opinion on industrial causation.

From the decision · page 7Neurosurgeon Henry Aryan, M.D., noted a Chiari Malformation (when brain/cerebellum) at the back of the skull bulges through a normal opening in the skull where it joins the spinal canal) in an MRI performed 3/16/2012. [Defense Exhibit 2, SDT records Aryan, bate stamped pp. 36-38] Dr. Aryan ordered an MRI of the brain and recommended consultation by a neurosurgeon at UCSF. (Id.) Applicant underwent consultation at UCSF 5/7/2012, then subsequent consultation at Stanford Neuroscience Health Center on 3/19/2014, and follow-up 12/129/16. [Defense Exhibit 1, SDT Records Stanford Health; Defense Exhibit 2, SDT records UCSF, pp. 36-38] Dr. Oehlschlaeger acknowledged the only aspect of the case that he was unfamiliar with was the notation Chiari malformation on the MRI, in which he researched. [Joint CCC, 8/25/21, Oehlschlaeger, p. JO, lines 16-18] Dr.

AMEGiven great weight

Reviewed and summarized prior left shoulder injury medical reports.

From the decision · page 8C. Left Shoulder Petitioner's assertion that Dr. Oehlschlaeger "admits that he is not able to properly evaluate multiple aspects of [Applicant's] case" and further alleging Dr. Oehlschlaeger admitted"... he is not able to competently compare current diagnostics to the past ones,... " are factually inaccurate statements of Dr. Oehlschlaeger's actual testimony and representations. [Petition for Reconsideration, 1/3/22, p. 4, lines 23-24} The parties provided Dr. Oehlschlaeger records Petitioner subpoenaed from Zurich, 9/20/2018, which included medical reports from Jeffrey Lundeen, M.D. dated 11/13/2007 and 2/26/2007 pertaining to a left shoulder injury on 11/29/2005, which Dr. 0 reviewed and summarized. [Defense Ex 5, Zurich, 9/20/18, p. 1; Oehlschlaeger, 2/12121, pp. 6-7). Dr. Lundeen, serving as an Agreed Medical Evaluator, reviewed and summarized a medical report of Lenita Williamson, M.D.

AMEGiven great weight

Examined Applicant for left shoulder injury in 2003; her report was reviewed by Dr. Lundeen.

From the decision · page 8C. Left Shoulder Petitioner's assertion that Dr. Oehlschlaeger "admits that he is not able to properly evaluate multiple aspects of [Applicant's] case" and further alleging Dr. Oehlschlaeger admitted"... he is not able to competently compare current diagnostics to the past ones,... " are factually inaccurate statements of Dr. Oehlschlaeger's actual testimony and representations. [Petition for Reconsideration, 1/3/22, p. 4, lines 23-24} The parties provided Dr. Oehlschlaeger records Petitioner subpoenaed from Zurich, 9/20/2018, which included medical reports from Jeffrey Lundeen, M.D. dated 11/13/2007 and 2/26/2007 pertaining to a left shoulder injury on 11/29/2005, which Dr. 0 reviewed and summarized. [Defense Ex 5, Zurich, 9/20/18, p. 1; Oehlschlaeger, 2/12121, pp. 6-7). Dr. Lundeen, serving as an Agreed Medical Evaluator, reviewed and summarized a medical report of Lenita Williamson, M.D.

The rules the panel named

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

Heggin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169

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.

Applied to evaluate the substantiality of Dr. Oehlschlaeger's medical opinions.

From the decision · page 5A. Substantiality Petitioner avers the findings are not justified by the evidence, contending Dr. Oehlschlaeger opinions do not constitute substantial medical evidence. 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. (Heggin v. Workers' Comp. Appeals Ed. (1971) 4 Cal.3d 162, 169) Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or guess. (Id.) Petitioner contends Dr. Oehlschlaeger opinion that there exists a "... reasonable medical probability... arose out of and occurred during the course of employment at Bush Construction from the heavy physical labor required,...

Labor Code §§ 5900, 5902

A Petition for Reconsideration may only be had of a final order, decision or award. An order which does not dispose of the substantive rights or liabilities of those involved in the case is not a final order.

Applied to determine the finality of the Findings and Award for reconsideration purposes.

From the decision · page 5A Petition for Reconsideration may only be had of a final order, decision or award. (Lab. Code, § 5900, subd. (a), 5902.) An order which does not dispose of the substantive rights or liabilities of those involved in the case is not a final order. (Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39.) In this case, this Court's Award/ addresses substantive rights and liabilities. Therefore, it is a final order subject to reconsideration.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's detailed description of heavy physical labor duties and worsening symptoms during employment

From the decision · page 42/12/21, pp. 7-8, 13-18] Applicant described his job duties to Dr. Oehlschlaeger, in detail, which included going up and down ladders, working on roofs, moving materials, swinging hammers and sledgehammers, lifting heaving braces, and equipment at times, weighting over 100 lbs. [Joint AAA, Oehlschlaeger, 2/12/21, pp. 15-16] Applicant complained of left shoulder pain, neck pain, low back pain and right knee pain which he reports as worsening during the time of his employment for Bush Construction. [Joint AAA, Oehlschlaeger, 2/12/21, p. 15] Applicant also complained of right shoulder pain, with no prior symptoms before employment at Bush Construction. [Joint AAA, Oehlschlaeger, 2/12/2021, p. 15] Dr. Oehlschlaeger reviewed a litany of medical records, including prior treatment reports, diagnostic studies and medical legal evaluations, which were summarized. [Joint AAA, Oehlschlaeger, 2/12/2021, pp. 2-7, 8-13] Dr. Oehlschlaeger conducted Applicant's physical examination, notating the findings. [Joint AAA, Oehlschlaeger, 2/12/21, pp. 17-18] Dr.

Documentary evidencefavours Applicant prevailed

No rebuttal evidence from Defendant to dispute Applicant's job duties or duration of employment

From the decision · page 6Applicant did not deny prior symptomology in his neck, right knee, low back, and left shoulder, due to years of heavy labor, rather described worsening symptomology in these body parts while employed at Bush Construction, due heavier work. Dr. Oehlschlaeger opined that the heavy nature of Applicant's work at Bush Construction did at least partially contribute to increasing impairment. [Joint CCC, Oehlschlaeger Depo., 8/25/21, p. 11, lines 8-17] Dr. Oehlschlaeger found Applicant to be credible when describing his complaints. [Joint CCC, Oehlschlaeger Depo., 8/25/21, p. 16, lines 8-9] Defendant proffered no rebuttal evidence, by way of testimony or documents, to demonstrate Applicant's work duties as a carpenter as described to Dr. Oehlschlaeger, which Dr. Oehlschlaeger determined to constitute of heavy work contributing to medical conditions, were factually inaccurate.

ADJ12897344 · March 7, 2022