ADJ643599 — California WCAB decision

ADJ643599 · January 21, 2025

The WCAB denied the defendant's Petition for Reconsideration and affirmed the WCJ's Findings and Order issued on October 11, 2021, except amending it to defer the issue of whether medical treatment after October 11, 2005 was reasonable and necessary. The matter was returned to the WCJ for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Pomona

What the panel ordered

Defendant sought reconsideration of the October 22, 2024 WCAB decision affirming the WCJ's October 11, 2021 Findings and Order, except deferring the issue of medical treatment reasonableness after October 11, 2005. The WCAB denied the defendant's petition for reconsideration and affirmed the WCJ's findings with amendment.

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.

Medical treatment / UR / IMRRemandedneck · back · psych · dental

The WCJ's apportionment of treatment after October 11, 2005 to a prior non-industrial injury was based on an incorrect legal theory and not supported by substantial evidence. The issue was deferred for further proceedings to determine if the treatment was reasonable and necessary to cure or relieve the industrial injury.

From the decision · page 16Here, lien claimant correctly asserts that the WCJ correctly concluded that the treatment prior to October 11, 2005 cannot be apportioned. Yet, as to the treatment after October 11, 2005, the WCJ incorrectly apportioned Dr. Schames' treatment to applicant's prior non-industrial injury [1987 drive by shooting] based on the report of Dr. Peterson. Dr. Peterson's opinions about the need for future treatment are based on an incorrect legal theory that medical treatment can be apportioned, and therefore are not substantial evidence. In sum, as a matter of law, the issue of whether applicant's treatment for the industrial injury can be apportioned between the industrial injury and a nonindustrial injury is simply irrelevant because if the treatment is reasonably related to the industrial injury, it is compensable.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The WCJ's apportionment of treatment after October 11, 2005 to a prior non-industrial injury was based on an incorrect legal theory and not supported by substantial evidence.

Favours Applicant prevailed

This led to deferral of the issue for further proceedings to determine reasonableness and necessity of treatment after October 11, 2005.

From the decision · page 16Here, lien claimant correctly asserts that the WCJ correctly concluded that the treatment prior to October 11, 2005 cannot be apportioned. Yet, as to the treatment after October 11, 2005, the WCJ incorrectly apportioned Dr. Schames' treatment to applicant's prior non-industrial injury [1987 drive by shooting] based on the report of Dr. Peterson. Dr. Peterson's opinions about the need for future treatment are based on an incorrect legal theory that medical treatment can be apportioned, and therefore are not substantial evidence. In sum, as a matter of law, the issue of whether applicant's treatment for the industrial injury can be apportioned between the industrial injury and a nonindustrial injury is simply irrelevant because if the treatment is reasonably related to the industrial injury, it is compensable.

Dr. Peterson's opinion about future treatment need was speculative and lacked an adequate medical history after October 11, 2005.

Favours Applicant prevailed

This undermined the defense's position and supported deferral for further proceedings.

From the decision · page 16Here, Dr. Peterson did not examine applicant after the QME visit on October 11, 2005, and she continued palliative treatment with Dr. Schames through December 2010. This lack of an adequate medical history means that Dr. Peterson's speculative comments about the need for medical treatment in the future even though he was evaluating applicant in October 2005 are not substantial evidence. Unless he examined applicant again to evaluate her current condition after the continuing palliative treatment from Dr. Schames, there is simply no basis to rely on his opinion.

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.

QMERejected · Dental

Dr. Peterson concluded that applicant's current restricted mobility was 50% caused by a 1987 accident and 50% due to aggravation from the 2004 industrial injury. His opinion about future treatment need was based on an incorrect legal theory that medical treatment can be apportioned and was not substantial evidence.

Dr. Peterson's opinion was rejected because it was based on an incorrect legal theory and lacked an adequate medical history after October 11, 2005.

From the decision · page 16Here, lien claimant correctly asserts that the WCJ correctly concluded that the treatment prior to October 11, 2005 cannot be apportioned. Yet, as to the treatment after October 11, 2005, the WCJ incorrectly apportioned Dr. Schames' treatment to applicant's prior non-industrial injury [1987 drive by shooting] based on the report of Dr. Peterson. Dr. Peterson's opinions about the need for future treatment are based on an incorrect legal theory that medical treatment can be apportioned, and therefore are not substantial evidence. In sum, as a matter of law, the issue of whether applicant's treatment for the industrial injury can be apportioned between the industrial injury and a nonindustrial injury is simply irrelevant because if the treatment is reasonably related to the industrial injury, it is compensable.

otherGiven great weight · Dental

Dr. Schames provided ongoing palliative treatment to manage pain and keep the patient at a plateau state, which is reasonable and necessary to relieve the effects of the industrial injury.

The treatment was considered reasonable and necessary to provide palliative relief for the industrial injury.

From the decision · page 10Please Note: Even though the patient has reached a plateau state in my area of expertise, the patient still requires on-going palliative treatments in order to help the patient manage the pain and keep them at the plateau state. According to my understanding, this continued care is discussed in the following case: Interventional Pain Management, Galileo Surgery Center vs. WCAB (Stratton) (2001) 66 CCC 1472, Court of Appeal unpublished opinion. The Court of Appeal held that even though the palliative medical treatment did not provide the applicant with a lasting benefit, these palliative treatments were still reasonable and necessary to relieve the applicant from the effects of an industrial injury, where the applicant's treating physician referred the applicant to the lien claimant for pain management.

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support of its conclusions.

The Board rejected Dr. Peterson's opinion as speculative and lacking adequate medical history.

From the decision · page 16It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 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 Cal.Comp.Cases 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. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].)

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Medical reports and opinions are not substantial evidence if based on facts no longer germane, inadequate medical histories and examinations, or incorrect legal theories.

Dr. Peterson's opinion was based on an incorrect legal theory that medical treatment can be apportioned and was rejected.

From the decision · page 16It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) 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 Cal.Comp.Cases 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. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].)

Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399

If treatment is reasonably related to the industrial injury, it is compensable and cannot be apportioned to a prior non-industrial injury.

The Board held that apportionment of medical treatment between industrial and non-industrial injuries is irrelevant if treatment is reasonably related to the industrial injury.

From the decision · page 72 Case numbers ADJ4391030 and ADJ643599 were consolidated at trial on June 22, 2021, but the issues were separately raised in each case, and lien claimant filed similar liens in both cases. Yet the WCJ only listed ADJ4391030 on the F&O, and this means that the lien in ADJ643599 has not been adjudicated. Moreover, lien claimant treated applicant for both dates of injury, and as medical treatment is not apportionable, a joint findings and order would be appropriate. ( See Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647].)

ADJ643599 · January 21, 2025

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page