ADJ14387238 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; F&A amended to defer permanent disability and attorney’s fees, award future medical treatment, and confirm stipulated temporary disability periods and ratesp. 7

Applicant petitioned for reconsideration of WCJ’s July 14, 2023 Findings and Award finding 0% permanent disability; WCAB granted reconsideration and amended the award

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.

Permanent disability ratingRemandedlumbar spine

WCJ relied on PTP Dr. Wood’s 0% strict AMA Guides rating; WCAB found Dr. Kelekar’s 14% DRE II rating not substantial evidence due to lack of objective findings and applicant’s lack of credibility; record requires further development

From the decision · page 1We have considered the allegations in the Petition and the Answer, and the contents of the Report. Based on our review of the record, and for the reasons discussed below, we will grant reconsideration and we will amend the F&A to find that the issue of permanent disability and attorney’s fees thereon is deferred, and that applicant is entitled to

The rules the panel named

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

Yeager Construction v. WCAB (Gatten) (2006) 145 Cal.App.4th 922

Medical opinion must be based on pertinent facts, adequate examination and history, and set forth reasoning; speculative or unsupported opinions are not substantial evidence

Dr. Kelekar’s opinion rejected as not substantial evidence

From the decision · page 4A physician’s report must not be speculative, it must be based upon pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. ( Yeager Construction v. WCAB ( Gatten ) (2006) 145 Cal.App.4th 922).

Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312

WCJ’s credibility findings entitled to great weight but Appeals Board may reject if substantial evidence supports contrary findings

WCJ’s credibility finding accepted; Dr. Kelekar’s reliance on applicant’s subjective history therefore undermined

From the decision · page 5A WCJ’s opinions regarding witness credibility are entitled to great weight, ( Garza, supra, 3 Cal.3d 312), and we do not question the WCJ’s opinion as to applicant’s credibility. However, “the Appeals Board is entitled to reject the WCJ’s findings on credibility matters if substantial evidence supports contrary findings.

McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (en banc)

When medical record is not substantial evidence, Appeals Board has authority to develop the record under Labor Code §§ 5701, 5906

Record to be further developed before permanent disability can be rated

From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers’ Comp.

ADJ14387238 · September 19, 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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