What the panel ordered
Petition for Reconsideration denied.
Defendant filed a Petition for Reconsideration of the May 31, 2023 Findings and Award; the Petition was denied by the Appeals Board panel on September 25, 2023.
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.
The Board found Dr. Pang's opinion that the December 23, 2020 incident caused new injuries to multiple body parts more persuasive and substantial evidence than Dr. Feinberg's non-committal and contradictory opinions, supporting a finding of new injury AOE/COE from the work incident.
From the decision · page 8Based on all of the foregoing, and with no sufficient medical evidence presented to the contrary, Dr. Pang's analysis and opinion constitutes substantial evidence, and presents as more persuasive, to wit: Applicant suffered a new and distinct injury to his lumbar spine, cervical and thoracic spine, pelvis, coccyx, and right shoulder girdle as a result of the work-related incident of 12-23-2020.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant suffered a fall at work on December 23, 2020, resulting in injuries to lumbar spine, cervical and thoracic spine, pelvis, coccyx, and right shoulder girdle.
Favours Applicant prevailed
This event was the basis for the new injury claim and causation analysis.
From the decision · page 4On December 23, 2020, Applicant fell backwards, at work, onto his buttocks and tailbone while pulling a fire hose from which Applicant alleges a new injury. Applicant was followed medically by his treating physicians, Arthur Ting, MD, Mark Sontag, MD, David Smolins, MD, and George Rakkar, MD before the December 23, 2020 incident through January 6, 2023, and continuing.1 Applicant's treating physicians have rendered concurring opinions that Applicant has been, and is, unable to return to work since December 24, 2020 (i.e., Dr. Ting's Work Status Report, pgs 2,3; Applicant's Exhibit 28; See also Dr. Sontag's 6-28-2022 Work Status Report, pg 5; Applicant's Exhibit 13).
MRI post-12/23/2020 showed a compression fracture at L2 not present in prior records, indicating a new lumbar injury.
Favours Applicant prevailed
This objective medical evidence supported the finding of a new injury distinct from prior conditions.
From the decision · page 4A lumbar MRI on March 26, 2021 reported a compression fracture at L2 (Mark Sontag. MD Request for Authorization DCW Form RFA, dated 4-1-2021, pg 2, "DIAGNOSTICS" #4, Applicant's Exhibit 26). Dr. Sontag noted that Applicant was experiencing symptoms in his neck and upper back, in addition to his lower back. He also opined that Applicant was P&S as to the February 7, 2019 injury but was not MMI as to his December 23, 2020 injury. Dr. Sontag's conclusions (that Applicant was not MMI, and was unable to return to work) was reiterated in his June 28, 2022 Work Status Report (See Applicant's Exhibits 14 and 27). Dr. Rakkar (taking over upon Dr. Sontag's retirement) continues to find Applicant unable to return to work through the present time (See Applicant's Exhibits 5 and 6).
Dr. Pang's detailed causation opinion linking the December 23, 2020 fall to new injuries was found substantial and more persuasive than Dr. Feinberg's non-committal opinion.
Favours Applicant prevailed
This medical opinion was critical to establishing new injury causation and overcoming defense objections.
From the decision · page 8Based on all of the foregoing, and with no sufficient medical evidence presented to the contrary, Dr. Pang's analysis and opinion constitutes substantial evidence, and presents as more persuasive, to wit: Applicant suffered a new and distinct injury to his lumbar spine, cervical and thoracic spine, pelvis, coccyx, and right shoulder girdle as a result of the work-related incident of 12-23-2020.
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.
Dr. Pang opined that the December 23, 2020 work incident caused new injuries to the applicant's lower back, neck, upper back, pelvis/coccyx, and right shoulder girdle, consistent with the mechanism of injury (a fall).
Dr. Pang provided a detailed job description, injury history, physical examination, and medical record review supporting causation of new injuries from the December 23, 2020 incident, which the Board found substantial evidence.
From the decision · page 6However, Dr. Feinberg is not the only IME reporting in this case. Dr. Pang, Applicant's IME, provided a detailed job description, history of the injury, and prior injuries, compete list of current complaints, the results of his physical examination of the Applicant, and review of the medical records, the content of which is substantially the same, in form and general content, as that which was provided in Dr. Feinberg's Reports.
Dr. Feinberg's opinions were non-committal and contradictory regarding whether the December 23, 2020 injury was a new injury or a temporary aggravation, deferring final determination until the applicant is permanent and stationary.
The Board found Dr. Feinberg's opinions confusing, non-committal, and contradictory, providing no definitive conclusion on new injury causation, thus less persuasive than Dr. Pang's opinion.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 CCC 604, 621 (Appeals Board, en banc.)
Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination/history, and set forth reasoning in support of conclusions.
Applied to evaluate the substantiality of medical evidence from Drs. Feinberg and Pang regarding causation of injury.
From the decision · page 5Decisions by the Appeals Board must be supported by substantial evidence. To constitute substantial evidence ''... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions" (Escobedo v. Marshalls (2005) 70 CCC 604, 621 (Appeals Board, en banc.). "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 WCAB (1971) 4 Cal.3d 162, 36 CCC 93).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's medical records and treating physicians' opinions post-12/23/2020 support ongoing disability and causation from the 12/23/2020 work incident.
From the decision · page 4On December 23, 2020, Applicant fell backwards, at work, onto his buttocks and tailbone while pulling a fire hose from which Applicant alleges a new injury. Applicant was followed medically by his treating physicians, Arthur Ting, MD, Mark Sontag, MD, David Smolins, MD, and George Rakkar, MD before the December 23, 2020 incident through January 6, 2023, and continuing.1 Applicant's treating physicians have rendered concurring opinions that Applicant has been, and is, unable to return to work since December 24, 2020 (i.e., Dr. Ting's Work Status Report, pgs 2,3; Applicant's Exhibit 28; See also Dr. Sontag's 6-28-2022 Work Status Report, pg 5; Applicant's Exhibit 13).
MRI showing compression fracture at L2 post-12/23/2020 injury, not present in prior records, supports new injury causation.
From the decision · page 4A lumbar MRI on March 26, 2021 reported a compression fracture at L2 (Mark Sontag. MD Request for Authorization DCW Form RFA, dated 4-1-2021, pg 2, "DIAGNOSTICS" #4, Applicant's Exhibit 26). Dr. Sontag noted that Applicant was experiencing symptoms in his neck and upper back, in addition to his lower back. He also opined that Applicant was P&S as to the February 7, 2019 injury but was not MMI as to his December 23, 2020 injury. Dr. Sontag's conclusions (that Applicant was not MMI, and was unable to return to work) was reiterated in his June 28, 2022 Work Status Report (See Applicant's Exhibits 14 and 27). Dr. Rakkar (taking over upon Dr. Sontag's retirement) continues to find Applicant unable to return to work through the present time (See Applicant's Exhibits 5 and 6).
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About this page
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