ADJ10341376 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; WCJ's Findings and Order of June 2, 2023 rescinded; matter returned to trial level for further proceedings and decision.

Applicant sought reconsideration of the WCJ's Findings and Order of June 2, 2023, which found no compensable permanent disability or need for future medical treatment; the WCAB granted reconsideration, rescinded the WCJ's decision, and returned the matter for further development of the record and decision.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.

Permanent disability ratingRemandedright testicle

The WCAB found that the medical evidence was insufficient and that the WCJ's decision was based on inadequate medical history and facts no longer germane, requiring further development of the record on permanent disability and medical treatment.

From the decision · page 4based on an inadequate medical history or on facts that are no longer germane. Additionally, a more thorough discussion of applicant's permanent impairment is necessary, given that Table 7-7 allows a permanent impairment rating of up to 10% WPI even when no continuous treatment is required. (AMA Guides, Table 7-7, p. 159.) To the extent that applicant's symptoms are being caused by non-industrial conditions, especially given that these symptoms arise in the same region as an admitted industrial injury after surgery, causation of these symptoms must be discussed in a non-conclusory manner.

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 · urology

Diagnosed right hydrocele secondary to direct contusion to testicle with 7% whole person impairment due to moderate pain; later opined no impairment or need for further treatment after surgery, but opinions were found based on inadequate history and facts no longer germane.

The WCAB found Dr. Agatstein's opinions were based on inadequate medical history or facts no longer germane and required further discussion of permanent impairment and causation.

From the decision · page 4based on an inadequate medical history or on facts that are no longer germane. Additionally, a more thorough discussion of applicant's permanent impairment is necessary, given that Table 7-7 allows a permanent impairment rating of up to 10% WPI even when no continuous treatment is required. (AMA Guides, Table 7-7, p. 159.) To the extent that applicant's symptoms are being caused by non-industrial conditions, especially given that these symptoms arise in the same region as an admitted industrial injury after surgery, causation of these symptoms must be discussed in a non-conclusory manner.

PTPGiven great weight · urology

Treated applicant with surgery for a massive right epididymal cyst; noted ongoing pain as source of symptoms.

The WCAB noted Dr. Warner's records showed ongoing pain after surgery, contradicting Dr. Agatstein's findings of no symptoms.

From the decision · page 3In light of the records from Dr. Warner and Dr. Satterthwaite and applicant's trial testimony that he was still experiencing right testicle pain, it appears that Dr. Agatstein's conclusions are

PTPPartially credited · urology

Noted testicular pain likely musculoskeletal or neuropathic; scrotal ultrasound unremarkable; no further urologic procedure recommended.

The WCAB considered Dr. Satterthwaite's opinion that pain was likely non-urologic in origin, but symptoms still required further discussion.

From the decision · page 3In light of the records from Dr. Warner and Dr. Satterthwaite and applicant's trial testimony that he was still experiencing right testicle pain, it appears that Dr. Agatstein's conclusions are

The rules the panel named

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

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620; E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928

Findings must be based on substantial evidence, which requires reasonable medical probability and a medical opinion with reasoning, not speculation or surmise.

The WCAB found that Dr. Agatstein's opinions lacked substantial evidence due to inadequate history and reasoning, requiring further development of the record.

From the decision · page 3All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) As the Court of Appeal wrote in E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687], "In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citation.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citation.] 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. [Citation.]"

Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403

WCJ and Appeals Board have a duty to further develop the record when medical evidence is absent or insufficient, to ensure substantial justice.

The WCAB granted reconsideration and remanded for further development due to insufficient medical evidence on permanent disability and treatment.

From the decision · page 4The WCJ and the Appeals Board have a duty to further develop the record when there is a complete absence of (Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) medical evidence on an issue. The WCAB has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) Since, in accordance with that mandate, "it is well established that the WCJ or the Board may not leave undeveloped matters" within its acquired specialized knowledge (Id. at p. 404), pursuant to Labor Code section 5906, we will grant reconsideration, rescind the WCJ's decision, and return this matter to the trial level for further development of the record and decision on the issues of permanent disability and further medical treatment. The parties and the WCJ should consider whether this case is best served by an agreed medical evaluator or an independent medical evaluator. Additionally, the applicant may require evaluation by other specialties. We express no opinion on the ultimate resolution of this matter.

ADJ10341376 · August 25, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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