ADJ8716925 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.

Applicant seeks reconsideration of the Findings and Award issued by the WCJ on February 19, 2025, which found permanent disability of 61% and non-catastrophic injury. The WCJ recommended denial of reconsideration. The Appeals Board granted reconsideration and deferred final decision pending further review.

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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.

Psyche AOE/COEApplicant prevailedback · head · bilateral shoulders · neck · bilateral hernia · psyche · right arm · bilateral wrists and hands · fingers

The Appeals Board found the record was not properly developed with respect to catastrophic injury and psychiatric impairment, noting lack of substantial medical opinion on activities of daily living (ADLs) related to the psychiatric injury and the use of sub-rosa videos without medical evaluation. The Board granted reconsideration to allow further development of the record and deferred final decision.

From the decision · page 1Applicant seeks reconsideration of the Findings and Award (F&A) issued by the workers compensation administrative law judge (WCJ) on February 19, 2025. Therein and as relevant here, the WCJ found that applicant sustained injury to his back, head, bilateral shoulders, neck, bilateral hernia, psyche, right arm, bilateral wrists and hands, and fingers during the period November 17, 1997 through January 8, 2013. The WCJ found that applicant's injury caused permanent disability of 61%.

The facts that decided it

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

Lack of substantial medical opinion on activities of daily living (ADLs) related to psychiatric injury

Favours Applicant prevailed

Without medical opinion, vocational reporting and sub-rosa videos are insufficient to support catastrophic injury finding.

From the decision · page 6Without a medical opinion, the vocational reporting is insufficient to support the award. Additionally, the WCJ cannot make a finding regarding how the sub-rosa video impacts a finding to ADLs without medical reporting. (Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes I) and Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 (Appeals Board en banc) (Nunes II).) In order for a decision as to whether applicant's injury was catastrophic to be based on substantial evidence, a newly appointed AME or regular doctor should be provided with applicant's trial testimony and the sub-rosa videos in order to provide substantial medical reporting. Finally, we note that the WCJ did not admit the sub-rosa videos into evidence.

No new AME or expert was appointed to review sub-rosa videos or provide updated medical opinion on ADLs

Favours Applicant prevailed

This lack of updated medical evaluation undermines the substantial evidence needed for catastrophic injury determination.

From the decision · page 6Specifically, applicant's attorney appears to improperly rely on the psychiatric reporting of Dr. Maibaum in regard to activities of daily living (ADLs) as the impact on applicant's psyche is not part of the consideration of whether an injury is catastrophic. Applicant properly refers to the reporting of orthopedist AME Dr. Rosenberg, but we note that there is no record of a request of Dr. Rosenberg to provide an opinion on ADLs. It also appears that by the time defendant produced the sub-rosa videos in 2023, Dr. Rosenberg was retired. Moreover, the parties never obtained a new AME or expert pursuant to section 5701 to comment on ADLs or to look at the sub-rosa videos. The parties did not request that an evaluator review any medical conclusions reached in light of the activities seen in the video. Because this did not occur, and because it appears that subrosa video is being used as medical evidence to establish the nature and extent of disability, there does not appear to be substantial medical opinion on ADLs with respect to the analysis regarding whether applicant suffered catastrophic injury.

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.

otherRejected

Provided psychiatric reporting regarding activities of daily living (ADLs), but the Board found this was not properly considered for catastrophic injury determination.

Psychiatric impact on ADLs is not part of catastrophic injury consideration; lack of substantial medical opinion on ADLs related to psychiatric injury.

From the decision · page 6Specifically, applicant's attorney appears to improperly rely on the psychiatric reporting of Dr. Maibaum in regard to activities of daily living (ADLs) as the impact on applicant's psyche is not part of the consideration of whether an injury is catastrophic. Applicant properly refers to the reporting of orthopedist AME Dr. Rosenberg, but we note that there is no record of a request of Dr. Rosenberg to provide an opinion on ADLs. It also appears that by the time defendant produced the sub-rosa videos in 2023, Dr. Rosenberg was retired. Moreover, the parties never obtained a new AME or expert pursuant to section 5701 to comment on ADLs or to look at the sub-rosa videos. The parties did not request that an evaluator review any medical conclusions reached in light of the activities seen in the video. Because this did not occur, and because it appears that subrosa video is being used as medical evidence to establish the nature and extent of disability, there does not appear to be substantial medical opinion on ADLs with respect to the analysis regarding whether applicant suffered catastrophic injury.

AMEGiven great weight · orthopedist

Provided permanent disability rating of 61% and found injury was not catastrophic; no opinion on activities of daily living (ADLs) was requested or provided.

No record of request for opinion on ADLs; retired by time sub-rosa videos produced; no new AME appointed to review videos or provide updated opinion.

From the decision · page 4The Rating Instructions and Formal Rating were served on parties, and Defendant filed an objection seeking to cross examine the DEU rater. A trial was held on February 12, 2025 to allow parties an opportunity to cross examine the DEU rater. It is noted on the minutes of hearing that DA withdrew their request to cross examine the rater and that the matter was submitted (Minutes of Hearing, February 12, 2025). A Findings and Award issued on February 19, 2025 in which it was found that Applicant's injury was not catastrophic and Applicant's permanent disability was 61% based on the reporting of AME Richard Rosenberg. It is from these findings that Applicant seeks reconsideration.

The rules the panel named

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

Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164

Substantial evidence must be reasonable, credible, and of solid value, framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and set forth reasoning in support of conclusions.

Applied to evaluate the sufficiency of medical evidence and opinions in the case.

From the decision · page 5[35 Cal. Comp. Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion... It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) 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).)

Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372

Where medical evidence is incomplete, stale, based on inaccurate history, or speculative, it does not constitute substantial evidence.

Applied to assess the adequacy of medical evidence in the case.

From the decision · page 5Based on our review, we are not persuaded that the record is properly developed. Where the medical evidence or opinion on an issue is incomplete, stale, and no longer germane, or is based on an inaccurate history, or speculation, it does not constitute substantial evidence. (Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Escobedo, supra, 70 Cal.Comp.Cases at p. 621.)

Wilson v. State of California; Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board En Banc)

Determination of catastrophic injury focuses on the nature of the injury and is fact-driven, considering factors such as treatment intensity, permanent and stationary outcome, severity and impact on ADLs, and analogy to specified severe injuries.

Applied to guide the determination of catastrophic injury status.

From the decision · page 5The determination of whether an injury is catastrophic for purposes of section 4660.1(c)(2)(B) focuses on the nature of the injury and is a fact-driven inquiry. Wilson v. State of California; Cal Fire (2019) 84 Cal.Comp.Cases 393 (Appeals Board En Banc) The trier of fact may consider the following factors in determining whether an injury is catastrophic:

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 and 894 (Appeals Board en banc)

Sub-rosa video evidence cannot be used as medical evidence to establish nature and extent of disability without medical opinion.

Applied to reject use of sub-rosa videos without medical evaluation in determining catastrophic injury.

From the decision · page 6Without a medical opinion, the vocational reporting is insufficient to support the award. Additionally, the WCJ cannot make a finding regarding how the sub-rosa video impacts a finding to ADLs without medical reporting. (Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes I) and Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 (Appeals Board en banc) (Nunes II).) In order for a decision as to whether applicant's injury was catastrophic to be based on substantial evidence, a newly appointed AME or regular doctor should be provided with applicant's trial testimony and the sub-rosa videos in order to provide substantial medical reporting. Finally, we note that the WCJ did not admit the sub-rosa videos into evidence.

What proof carried it

The evidence the panel weighed, by kind.

Surveillancefavours Defendant prevailed

Sub-rosa videos produced by defendant in 2023

From the decision · page 6Specifically, applicant's attorney appears to improperly rely on the psychiatric reporting of Dr. Maibaum in regard to activities of daily living (ADLs) as the impact on applicant's psyche is not part of the consideration of whether an injury is catastrophic. Applicant properly refers to the reporting of orthopedist AME Dr. Rosenberg, but we note that there is no record of a request of Dr. Rosenberg to provide an opinion on ADLs. It also appears that by the time defendant produced the sub-rosa videos in 2023, Dr. Rosenberg was retired. Moreover, the parties never obtained a new AME or expert pursuant to section 5701 to comment on ADLs or to look at the sub-rosa videos. The parties did not request that an evaluator review any medical conclusions reached in light of the activities seen in the video. Because this did not occur, and because it appears that subrosa video is being used as medical evidence to establish the nature and extent of disability, there does not appear to be substantial medical opinion on ADLs with respect to the analysis regarding whether applicant suffered catastrophic injury.

Medical recordsfavours Applicant prevailed