ADJ8734121 — California WCAB decision

ADJ8734121 · July 19, 2022

The WCAB granted the Petition for Reconsideration, rescinded the April 25, 2022 Findings, Award & Order, amended the permanent and stationary date to November 3, 2016, found injury to the psyche, ordered further development of the record for internal medicine and urology issues, and deferred permanent disability, apportionment, and attorney fees pending further development.

Issues decided

Medical opinions weighed

Authorities named

District office

Anaheim

What the panel ordered

Applicant sought reconsideration of the WCJ's April 25, 2022 Findings, Award & Order, contending apportionment was unsupported, permanent and stationary date was November 3, 2016, psychiatric injury was supported, and permanent total disability was warranted; WCJ recommended granting reconsideration, amending permanent and stationary date, and developing record for internal medicine and urology issues, deferring permanent disability and apportionment issues pending further development.

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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.

ApportionmentDeferredcervical spine · lumbar spine

The Board deferred the issue of apportionment pending further development of the record, noting that valid apportionment must be based on substantial evidence and reasonable medical probability, not speculation.

From the decision · page 8Although we are deferring issues of permanent disability and apportionment, we note that to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, 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 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647] (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 799-801 [33 Cal.Comp.Cases 358] (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence).) Thus, while we express no opinion as to the validity of the apportionment on the record before us, we note that valid apportionment must reflect the principles espoused above.

The facts that decided it

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

Psychiatric QME Dr. Saint Martin's reports linked applicant's dysthymic disorder to her work-related cervical and lumbar spine injuries.

Favours Applicant prevailed

Supported finding of injury to the psyche, leading to amendment of injured body parts to include psyche.

From the decision · page 7Applicant also contends the reporting of psychiatric QME Dr. Saint Martin supports a finding of industrial injury in the form of dysthymic disorder. (Petition, at 20:1.) The WCJ notes that Dr. Saint Martin identified nonindustrial "phase of life" problems, and that his September 2, 2017 report found no industrial psychiatric illness or injury. (Report, at p. 6.) However, Dr. Saint Martin diagnosed a dysthymic disorder in his July 12, 2019 report, indicating that "the applicant's dysthymic disorder is a psychiatric condition that is related to her musculoskeletal complaints and injuries," and noted his final opinion would depend on whether applicant's musculoskeletal complaints were industrial in nature (Ex. 22, report of Manuel Saint Martin, dated July 12, 2019, p. 4.) Following receipt and review of orthopedic reporting, Dr. Saint Martin issued a supplemental report of August 12, 2019, indicating "based on the orthopedic records, the applicant's dysthymic disorder is related to her work related cervical and lumbar spine injuries." (Ex. 19, report of Manuel Saint Martin, dated August 12, 2019, p. 2.) Accordingly, we will amend Findings of Fact No. 1 to reflect injury to the psyche.

Orthopedic QME Dr. Peters identified November 3, 2016 as the permanent and stationary date and noted additional temporary disability periods.

Favours neutral

Supported amending the permanent and stationary date in the Findings of Fact.

From the decision · page 7Next, applicant contends the reporting of orthopedic QME Dr. Peters supports a final permanent and stationary date of November 3, 2016. (Petition, at 18:3.) We concur with the WCJ's observation that the November 3, 2016 date is warranted in the record. (Report, at p. 5.) We observe that Dr. Peters' report of October 30, 2019 addresses the specific issue, and identifies additional temporary disability from through November 3, 2016. (Ex. 30, report of orthopedic QME Todd Peters, M.D., dated October 30, 2019, pp. 1-2.) No party challenged these determinations in deposition or interrogatory. Accordingly, we will amend the Findings of Fact No. 3 to reflect as recommended by the WCJ.

Applicant testified to making two trips to the bathroom during the night and medical reports recommended further specialist evaluations in urology and gastroenterology.

Favours Applicant prevailed

Supported the order for further development of the record regarding internal medicine and urology complaints.

From the decision · page 6The applicant testified to making two trips to the bathroom during the night. I interpreted the intent of the parties to not have the Court order the examinations suggested by the Panel QME to their representation that the reporting was complete and the parties were ready for trial. The applicant has been treating outside the workers compensation system with none of those reports offered into evidence. Applicant's counsel has now requested that the urological and gastrointestinal evaluations he recommended. These obviously should have been previously requested instead of representing the parties were ready to proceed to trial. No such request was made at the conference or trial. But now that this request is being made, I agree that that reporting needs to be submitted to Dr. Thomas E. Hascall to complete his QME evaluation. On page 27 of his 9/30/2014 Supplemental Panel QME medical report, Dr. Hascall opines that a report from a urologist and a gastrointestinal workup need to be submitted to him to complete his reporting. (Report, at p. 6.)

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.

QMERelied upon · orthopedics

Deemed applicant permanent and stationary with whole person impairment; concluded 30% disability arose from employment and 70% from preexisting degenerative changes; identified November 3, 2016 as permanent and stationary date; noted additional temporary disability periods.

Provided apportionment percentages and permanent and stationary date; report was basis for amending permanent and stationary date and deferring apportionment issue.

From the decision · page 2The parties selected Todd W. Peters, M.D. to act as the QME in orthopedics. Dr. Peters authored an initial report of September 26, 2013 identifying injury to the cervical and lumbar spine. (Ex. 29, report of orthopedic QME Todd W. Peters, M.D., dated September 26, 2013.) Dr. Peters deemed applicant permanent and stationary, and described whole person impairment. With respect to apportionment, the QME noted applicant's medical records dating to 1994 suggested scoliosis and osteoarthritis, and a history of neck discomfort. (Id. at p. 9.) On this basis, Dr. Peters concluded applicant had sustained significant degenerative changes prior to 1994. The QME concluded 30% of applicant's disability arose out of her employment with defendant, and 70% arose out of

QMERelied upon · psychiatry

Diagnosed 'phase of life problem' and dysthymic disorder; linked dysthymic disorder to work-related cervical and lumbar spine injuries; final opinion dependent on orthopedic findings; supported injury to psyche.

His reports supported finding of industrial psychiatric injury, leading to amendment of injured body parts to include psyche.

From the decision · page 3The parties selected Manuel Saint Martin, M.D. to act as the psychiatric QME. Dr. Saint Martin issued a report on May 8, 2014 following an evaluation of applicant, diagnosing a "phase of life problem" at Axis I, and noting a Global Assessment of Function (GAF) score of 70. (Ex. 25, report of psychiatric QME Manuel Saint Martin, M.D., dated May 8, 2014, p. 9.)

QMERelied upon · internal medicine

Recommended further evaluation by specialists in gastroenterology and urology to address applicant's complaints; report supported further development of record.

Report recommended further specialist evaluations, supporting record development order.

From the decision · page 3The parties also selected Thomas Hascall, M.D. to act as QME in internal medicine. In a report dated May 28, 2014, Dr. Hascall noted that applicant's complaints of sleep disturbance may have arisen out of possible sleep apnea or body habitus issues, and recommended a sleep study be performed. (Ex. 41, report of internal medicine QME Thomas Hascall, M.D., dated May 28, 2014, pp. 7-8.) Dr. Hascall further opined that applicant's complaints of urinary symptoms should be evaluated by an urologist, and that applicant should also be referred to a gastroenterologist. (Ibid.) Dr. Hascall issued a supplemental report on September 30, 2014, wherein he reviewed additional records, and reiterated his recommendation that applicant be seen by the appropriate specialists to address her internal medicine and urology complaints. (Ex. 40, report of internal medicine QME Thomas Hascall, M.D., dated September 30, 2014.)

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, 621

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

Applied to evaluate the validity of apportionment evidence.

From the decision · page 8Although we are deferring issues of permanent disability and apportionment, we note that to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, 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 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647] (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 799-801 [33 Cal.Comp.Cases 358] (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence).) Thus, while we express no opinion as to the validity of the apportionment on the record before us, we note that valid apportionment must reflect the principles espoused above.

Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407

A medical report must set forth the reasoning behind the physician's opinion, not merely conclusions, to be substantial evidence.

Applied to evaluate the validity of apportionment evidence.

From the decision · page 8Although we are deferring issues of permanent disability and apportionment, we note that to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, 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 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647] (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 799-801 [33 Cal.Comp.Cases 358] (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence).) Thus, while we express no opinion as to the validity of the apportionment on the record before us, we note that valid apportionment must reflect the principles espoused above.

Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 799-801

An opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence.

Applied to evaluate the validity of apportionment evidence.

From the decision · page 8Although we are deferring issues of permanent disability and apportionment, we note that to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, 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 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647] (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 799-801 [33 Cal.Comp.Cases 358] (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence).) Thus, while we express no opinion as to the validity of the apportionment on the record before us, we note that valid apportionment must reflect the principles espoused above.

ADJ8734121 · July 19, 2022

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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