ADJ7984952 — California WCAB decision

What the panel ordered

Findings, Award & Order dated August 12, 2021, affirmed after reconsideration.

Petition for Reconsideration filed by applicant's attorney, seeking review of Findings, Award & Order dated August 12, 2021; WCJ filed Report and Recommendation to deny reconsideration; WCAB issued Decision After Reconsideration affirming prior decision.

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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 / IMRDefendant prevailedleft elbow · bilateral wrists · right middle finger

The WCJ found that the AME's face-to-face time with the applicant, combined with the history taken by staff, met the regulatory requirements and did not invalidate the AME's report as substantial medical evidence. The WCAB affirmed this finding after reconsideration.

From the decision · page 9The basic allegation in Applicant's Petition is that Applicant's case involved a complex medical-legal evaluation and that the face to face examination time of 20 to 30 minutes with the AME Dr. Gordon, as testified to by the Applicant, is insufficient under the standard specified in Rule 49.2 for neuromusculoskeletal evaluations, with the result that the resulting report is not substantial medical evidence, cannot be the basis of an award, and that the AME should be replaced. The alleged error is my finding that the time spent with the Applicant by the AME was sufficient under the law and regulations, and that accordingly, Dr. Gordon's report is substantial medical evidence, and was the proper basis for the FA&O, and that it was not necessary to replace the AME.

The facts that decided it

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

The AME's report was detailed, included a review of 504 pages of medical records, a physical exam, and a thorough history review.

Favours Defendant prevailed

This supported the WCJ's finding that the AME's report was substantial medical evidence despite the face-to-face time dispute.

From the decision · page 10It is evident from the Applicant's testimony that at a minimum, Dr. Gordon's staff provided him with a long questionnaire to complete upon arrival at the office, which he did, and that his staff took a detailed history from the Applicant, which by the Applicant's own trial testimony lasted approximately 30 minutes. The declaration from the AME in his report was that he "went over the details of that history" with the Applicant and performed a physical exam of the Applicant. (Joint 101 at p. 1.) His report summarizes a detailed history from the Applicant (Id. at p. 3-4), summarizes 504 pages of medical records at pages 6-12 (Id. at p. 2), documents the physical exam (Id. at pp. 5-6), and provides his assessment and opinions which include diagnosis, P&S status, impairment, apportionment, and future medical treatment. (Id. at pp. 13- 17.) In short, I found Dr.

Applicant's testimony indicated face-to-face time with the AME was about 20 to 30 minutes, with 30 minutes history taken by staff.

Favours Defendant prevailed

The WCJ inferred that the total time including staff history and AME face-to-face time met regulatory requirements.

From the decision · page 9I agree with the Petition that the only direct evidence in the record as to the specific amount of face to face time between the Applicant and Dr. Gordon comes from the Applicant's trial testimony. Unfortunately, the time declaration in Dr. Gordon's report combines the time of the interview conducted by his staff with the face to face time he personally spent with the Applicant, i.e., a total of 1 hour, and does not specify or break out the specific amount of face to face time. It is clear from Rule 49(b) that face to face time for purposes of these rules only includes time spent with the actual evaluator; "Face to face time means only that time the evaluator is present with an injured worker. To the extent that the Applicant testified that he spent about 30 minutes with Dr. Gordon's nurses providing a history (Opinion at 6, MOH/SOE at p. 6), if you take the AME's sworn declaration of one hour total time spent with the Applicant, the inference is that Dr. Gordon's actual face to face time was closer to the high end of the 30 minutes referenced in the range offered by the Applicant in his testimony, rather than the lower 20 minute end of his estimate.

The rules the panel named

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

Rule 49.2 of the California Workers' Compensation Rules of Court regarding face-to-face time requirements for medical-legal evaluations

The WCJ applied Rule 49.2 to assess whether the AME's face-to-face time with the applicant was sufficient to constitute substantial medical evidence.

From the decision · page 9I agree with the Petition that the only direct evidence in the record as to the specific amount of face to face time between the Applicant and Dr. Gordon comes from the Applicant's trial testimony. Unfortunately, the time declaration in Dr. Gordon's report combines the time of the interview conducted by his staff with the face to face time he personally spent with the Applicant, i.e., a total of 1 hour, and does not specify or break out the specific amount of face to face time. It is clear from Rule 49(b) that face to face time for purposes of these rules only includes time spent with the actual evaluator; "Face to face time means only that time the evaluator is present with an injured worker. To the extent that the Applicant testified that he spent about 30 minutes with Dr. Gordon's nurses providing a history (Opinion at 6, MOH/SOE at p. 6), if you take the AME's sworn declaration of one hour total time spent with the Applicant, the inference is that Dr. Gordon's actual face to face time was closer to the high end of the 30 minutes referenced in the range offered by the Applicant in his testimony, rather than the lower 20 minute end of his estimate.

California Constitution

Article XIV, section 4 of the California Constitution requiring substantial justice in workers' compensation cases

The WCJ considered the constitutional mandate to accomplish substantial justice expeditiously and without encumbrance in evaluating the sufficiency of the AME's face-to-face time.

From the decision · page 11What is a judge to do given this poor and/or incomplete regulatory scheme with respect to minimum face to face time requirements for most cases, i.e., something other than an uncomplicated evaluation? For big picture guidance, I would look to Section Article XIV, section 4 of the California Constitution, which provides that the Board and its judges shall administer the statutory and regulatory workers' compensation scheme to accomplish "substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character." Under that standard, and reading the rules as a whole and considering the extensive 30 minutes history taken by Dr. Gordon's staff, the fact that the definition of face to face time in Rule 49(b) appears to assume that such a history would be taken by the doctor himself during that face to face time, and the fact it does appear likely that the actual face to face time was an additional 30 minutes when considering the AME report's declaration and the Applicant's testimony together, I do not think that the facts in this case violate the spirit of the rules, render Dr. Gordon's AME opinions non-substantial, invalidate the award, or warrant the replacement of the AME.

ADJ7984952 · August 8, 2024

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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