ADJ13053362 — California WCAB decision

What the panel ordered

The Appeals Board granted defendant's Petition for Reconsideration, rescinded the June 2, 2023 Joint Findings, Award and Order, and returned the matter to the WCJ for further proceedings and a new decision.

Defendant filed a timely Petition for Reconsideration of the WCJ's June 2, 2023 Joint Findings, Award and Order, which was not timely acted upon by the Appeals Board due to lack of notice until November 3, 2023. The Appeals Board granted reconsideration, rescinded the F&A, and returned the matter to the WCJ for further proceedings.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.

Temporary disabilityRemandedneck · shoulders · back · knee · right arm · elbow

Dr. Rutchik's reports lacked sufficient explanation and reasoning for his opinion that applicant was temporarily totally disabled since February 2022, thus not constituting substantial evidence. The Appeals Board found the record insufficient and remanded for further development.

From the decision · page 5Here, as quoted above, in his November 7, 2022 report, (referring to his July 15, 2022 report), Dr. Rutchik stated that in his January 27, 2022 report he had concluded that applicant's condition had reached MMI status "with 100% of his impairment attributed to the industrial activities; however, given his continued pain and difficulties, I would concur that the applicant is TTD at this time.... Therefore, I would opine that the applicant was TTD since at least February of 2022." (Joint Exh. 102, p. 11.) Clearly, Dr. Rutchik stated his conclusion but did not set forth the reasoning or the basis for his opinion. It appears that his only explanation for changing his previously stated opinion that applicant had reached MMI status was applicant's "continued pain and difficulties." However, "[a] temporary disability is an impairment reasonably expected to be cured or improved with proper medical treatment." (Signature Fruit Co. v. Workers' Comp. Appeals Bd.; Chavira v. Workers' Comp. Appeals Bd.

The rules the panel named

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

Lab. Code, 5952(d)

An award, order, or decision of the Appeals Board must be supported by substantial evidence.

The Appeals Board reviewed whether Dr. Rutchik's reports constituted substantial evidence on temporary disability.

From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

To be substantial evidence a medical opinion must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions.

The Appeals Board found Dr. Rutchik's opinion lacked reasoning and was therefore not substantial evidence.

From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

ADJ13053362 · December 1, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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