ADJ13081250 · May 7, 2024

The WCJ failed to address the merits of the applicant's contention that the QME report was not substantial evidence, which is required by law; the WCAB granted reconsideration and remanded for further proceedings to consider this issue.

From the decision · page 1Applicant seeks reconsideration of the February 14, 2024 Findings and Award ("F&A"), wherein the workers' compensation administrative law judge (WCJ) found applicant sustained a work-related injury to his back on March 13, 2017, but that applicant sustained no permanent disability as a result of the injury, that he did not require any further medical treatment, and that applicant was therefore due no further compensation. (F&A, at pp. 1§ 2.)1 Applicant asserts that the WCJ erred in basing her conclusions on the reporting of Panel Qualified Medical Examiner ("QME") Ronald Wolfson, M.D. because the reports are not substantial medical evidence.

WCJ did not address merits of applicant's contention that QME report was not substantial evidence

Favours Applicant prevailed

Required by law to address substantiality of evidence; failure led to granting reconsideration and remand

From the decision · page 5Moreover, we note that the WCJ did not provide the parties an opportunity to reappear to argue any of these issues after we concluded the claim was not barred by a prior settlement and returned the matter to the WCJ for further proceedings, instead opting to issue the instant F&A without further proceedings. Without having been given the chance to articulate the issue to the WCJ post-remand, we do not think it would be fair to rule that applicant has waived the ability to challenge the substantiality of the QME Report based on his prior course of conduct.

Concluded applicant sustained a back sprain on March 13, 2017, but that the injury resolved and current problems are due to metastatic cancer; found no permanent impairment.

The WCJ based findings on Dr. Wolfson's report but did not adequately address its substantiality as evidence, leading to reconsideration and remand.

From the decision · page 2Dr. Wolfson concluded that applicant had sustained a back sprain on March 13, 2017, but that "in all medical probability," the injury "resolved, and there is no evidence at this time that his problems are caused by anything other than his metastatic cancer." (Id. at p. 19.) On the question of the cancer, and whether it could have been caused by applicant's employment, Dr. Wolfson clearly stated that he was "not an expert about magnetic electrical fields and I cannot opine on that question."3 (Ibid.) Dr. Wolfson accordingly found no permanent impairment. (Id. at p. 20.)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753; Labor Code sections 5903, 5952(d)

Decision must be based on admitted evidence in the record and supported by substantial evidence; WCJ must refer to evidence in opinion on decision and clearly designate evidence forming basis of decision

WCJ's failure to address substantiality of QME report in decision led to remand for further proceedings

From the decision · page 4Turning to the merits of applicant's argument, the WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (Lab. Code, § 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd.

Applicant did not submit evidence of efforts to obtain clarifications from QME regarding report deficiencies

From the decision · page 4First, the WCJ asserts that the issue is waived because applicant did not submit evidence that he had made efforts to obtain additional information or clarifications from the QME regarding the alleged deficiencies of the report. Although we sympathize with the WCJ here over applicant's apparent inaction, any such failure does not waive a claim that the QME Report does not constitute substantial evidence. Medical evidence either is or is not substantial, and a party's lack of effort to introduce other evidence does not convert otherwise insubstantial evidence into substantial evidence.

Applicant did not raise issue relating to QME report at trial despite multiple motions; QME report was listed as joint exhibit

From the decision · page 5Third, the WCJ notes that despite having made multiple motions at trial, applicant's attorney did not raise any issue relating to the QME Report, and that the QME Report was listed as a joint exhibit. Although we are sympathetic to the WCJ's frustrations here, the same considerations as above apply PD was listed as an issue at trial, and the fact that the QME Report was listed as a joint exhibit does not mean that applicant conceded it to be substantial evidence, it merely means that applicant consented for it to be considered.

Applicant failed to submit medical evidence at trial to establish permanent impairment or need for future medical treatment on an industrial basis

From the decision · page 5Finally, the WCJ points to applicant's failure to carry "his burden of proof to submit medical evidence at trial to establish that [he] sustained permanent impairment and/or need for future medical treatment on an industrial basis," and that, with discovery closed as of October 11, 2023, any such opportunity has passed. This again dodges the issue applicant's contention is that Dr. Wolfson's QME Report upon which the WCJ's conclusion was based is not substantial evidence. To the extent that applicant failed to submit contrary evidence, that is a different issue, and does not result in waiver of the argument that the QME report is not substantial.