ADJ14970948 · December 16, 2024

The Appeals Board admitted Dr. Gillis's report but found the QME Dr. Allems's report more thorough and persuasive, affirming the denial of industrial injury causation.

From the decision · page 10In summary, we agree with applicant that Dr. Gillis was not retained for the sole purpose of rebutting the opinions of a QME who had not yet issued a report. We therefore grant reconsideration and amend the F&O to admit the February 17, 2022 report of Dr. Gillis into evidence. However, having weighed the reporting of consulting physician Dr. Gillis against that of QME Dr. Allems, we decline to disturb the WCJ's reliance on the reporting of QME Dr. Allems as the more thorough and persuasive. Thus, we affirm the WCJ's determination that applicant did not sustain the burden of establishing that decedent sustained injury arising out of and in the course of employment.

Dr. Allems's QME report concluded decedent's death was due to cardiac arrhythmia from underlying heart disease triggered by alcohol intoxication, not heat-related illness.

Favours Defendant prevailed

The Board found this report more thorough and persuasive, relying on it to deny industrial injury causation.

From the decision · page 9percent," and that the "cause of death at autopsy was attributed to hypertensive and advanced atherosclerotic heart disease - he had not had an acute myocardial infarction/MI/heart attack." (Ibid.) The QME offered statistical research regarding the relationship between coronary artery disease and sudden cardiac death. (Id. at p. 9.) Post-mortem toxicology analysis further revealed that decedent's blood alcohol concentration was 0.197 percent, more than twice the legal limit for intoxication. (Id. at p. 10.) Dr. Allems noted that alcohol intoxication is a known trigger for lethal cardiac arrhythmias and alcoholic cardiomyopathy. (Ibid.) The QME also noted that decedent did not appear to exhibit symptoms consistent with a heat-based illness, as the decedent's symptoms were acute, rather than progressive, and were not consistent with known symptoms of heat-related illness. (Id. at p.

Dr. Gillis's report was obtained before the QME process and not solely for rebuttal, so it was admitted into evidence on reconsideration.

Favours Applicant prevailed

This admission allowed consideration of applicant's evidence but did not change the outcome as the Board found Dr. Allems's report more persuasive.

From the decision · page 6Thus, the reporting of a consulting or attending physician is specifically permitted under both Valdez, supra, and Batten, supra, so long as the reporting expert was not retained solely for the purpose of rebutting the opinion of the QME. Here, the WCJ acknowledges that the "report of Dr. Bruce Gillis dated 2/17/2022 was obtained before the AME/QME process had begun," but because the report was obtained "outside the statutory process of Labor Code Sections 4060, 4061 and 4062 process and without agreement by defendant," the report was deemed inadmissible. (Opinion on Decision, at p. 6.) However, because the February 17, 2022 reporting of Dr. Gillis predated the July 13, 2023 reporting of QME Dr. Allems, it is axiomatic that Dr. Gillis could not have been "retained solely for the purpose of rebutting the opinion" as expressed in a QME report that had not yet issued.

Dr. Gillis opined that decedent's death was contributed to by work exposures including extreme heat and physical exertion, causing cardiovascular stress leading to death.

Dr. Gillis's report was admitted as evidence but found less persuasive than the QME's report.

From the decision · page 8Reporting in his capacity as a consulting physician, Dr. Gillis opines that decedent had several comorbidities that contributed to his early death. These factors included obesity, a longstanding medical history of hypertension, secondary cardiovascular complications, noncompliance with anti-hypertensive medication, and evidence of "hepatic steatosis, pulmonary congestion and pulmonary edema." (Ex. 3, Report of Bruce Gillis, M.D., dated February 17, 2022, at p. 4.) However, Dr. Gillis opines that "[t]he findings of pulmonary congestion and pulmonary edema indicate that [decedent], at the time of his death, was suffering the effects of extreme environmental heat." (Ibid.) Dr. Gillis notes that "[h]eatstroke is also exacerbated by physical exertion in hot weather," and that "[t]he available occupational materials prove that [decedent] was indeed doing extreme physical exertion in such a hot environment." (Id. at p. 5.) Thus, Dr. Gillis concludes that "the combination of the strenuous work he was engaged in and the environmental temperature he was enduring were intolerable for his cardiovascular system and thus they triggered the inexorable and inescapable factors that led to this gentleman's demise." (Ibid.)

Dr. Allems opined that decedent's death was due to cardiac arrhythmia from underlying heart disease triggered by alcohol intoxication, not heat-related illness.

The WCJ and Appeals Board found Dr. Allems's report more thorough and persuasive, relying on it to deny industrial injury causation.

From the decision · page 9percent," and that the "cause of death at autopsy was attributed to hypertensive and advanced atherosclerotic heart disease - he had not had an acute myocardial infarction/MI/heart attack." (Ibid.) The QME offered statistical research regarding the relationship between coronary artery disease and sudden cardiac death. (Id. at p. 9.) Post-mortem toxicology analysis further revealed that decedent's blood alcohol concentration was 0.197 percent, more than twice the legal limit for intoxication. (Id. at p. 10.) Dr. Allems noted that alcohol intoxication is a known trigger for lethal cardiac arrhythmias and alcoholic cardiomyopathy. (Ibid.) The QME also noted that decedent did not appear to exhibit symptoms consistent with a heat-based illness, as the decedent's symptoms were acute, rather than progressive, and were not consistent with known symptoms of heat-related illness. (Id. at p.

Labor Code section 5705

Applicant has the burden of establishing reasonable probability of industrial causation for death claims.

The Board applied this standard to assess whether decedent's death arose out of employment.

From the decision · page 8Turning to the merits of the F&O, the parties have framed for decision the issue of whether decedent sustained industrial injury arising out of and in the course of employment resulting in his death. "The applicant for workers' compensation benefits has the burden of establishing the `reasonable probability of industrial causation.'" (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660]; Lab. Code, § 5705.) However, "[d]eath attributable to both industrial and nonindustrial causes may support a death claim, and industrial causation has been shown in an array of scenarios where a work injury contributes to a subsequent nonindustrial injury. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300 [80 Cal.Comp.Cases 489].) In order to meet that burden, `"[a]ll that is required is that the employment be one of the contributing causes without which the injury would not have occurred.'" (Id. at pp. 297-298.)

South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

Death attributable to both industrial and nonindustrial causes may support a death claim if employment is a contributing cause.

The Board cited this case to explain the standard for industrial causation in death claims.

From the decision · page 8Turning to the merits of the F&O, the parties have framed for decision the issue of whether decedent sustained industrial injury arising out of and in the course of employment resulting in his death. "The applicant for workers' compensation benefits has the burden of establishing the `reasonable probability of industrial causation.'" (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660]; Lab. Code, § 5705.) However, "[d]eath attributable to both industrial and nonindustrial causes may support a death claim, and industrial causation has been shown in an array of scenarios where a work injury contributes to a subsequent nonindustrial injury. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300 [80 Cal.Comp.Cases 489].) In order to meet that burden, `"[a]ll that is required is that the employment be one of the contributing causes without which the injury would not have occurred.'" (Id. at pp. 297-298.)

Dr. Gillis's report was obtained before the QME process began, so it was not retained solely to rebut the QME report.

From the decision · page 6Thus, the reporting of a consulting or attending physician is specifically permitted under both Valdez, supra, and Batten, supra, so long as the reporting expert was not retained solely for the purpose of rebutting the opinion of the QME. Here, the WCJ acknowledges that the "report of Dr. Bruce Gillis dated 2/17/2022 was obtained before the AME/QME process had begun," but because the report was obtained "outside the statutory process of Labor Code Sections 4060, 4061 and 4062 process and without agreement by defendant," the report was deemed inadmissible. (Opinion on Decision, at p. 6.) However, because the February 17, 2022 reporting of Dr. Gillis predated the July 13, 2023 reporting of QME Dr. Allems, it is axiomatic that Dr. Gillis could not have been "retained solely for the purpose of rebutting the opinion" as expressed in a QME report that had not yet issued.

Dr. Gillis was not provided with video evidence of decedent's work activities on the date of injury, raising questions about the completeness of his opinion.

From the decision · page 9The WCJ's Report observes that Dr. Gillis was never provided with video evidence relevant to the decedent's work activities on the date of injury. (Report, at p. 9.) As such, it is unclear whether Dr. Gillis's opinions are based on a complete medical history, including relevant information as to the decedent's work activities and environment on the date of injury. We also note that several of Dr. Gillis's statements regarding the probative value of post-mortem findings of pulmonary edema are conclusory, offer no citation to the evidentiary record, and do not adequately explain the basis for the physician's conclusions. 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. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) Accordingly, and following our independent review of the record occasioned by applicant's Petition, we decline to disturb the WCJ's express reliance on the reporting of Dr. Allems.