What the panel ordered
Findings of Fact and Order dated August 21, 2019, rescinded; matter returned to WCJ for further proceedings and new decision
Petition for Reconsideration granted to further study factual and legal issues; decision after reconsideration rescinds prior Findings of Fact and Order and returns matter to WCJ for further proceedings
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.
The WCJ found QME Dr. Swartz biased and his opinions speculative and based on incorrect legal theories, thus not substantial evidence; the WCAB found no evidence of bias but agreed the reports were not substantial evidence and rescinded the prior decision for further development.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on August 21, 2019, wherein the WCJ found in pertinent part that applicant sustained a specific non-industrial injury to his lower back on July 26, 2015; that as a result of the July 26, 2015 injury applicant underwent surgery which resulted in a non-industrial urological/bladder injury; that the record needs further development to determine whether applicant sustained a cumulative low back injury during the period ending November 18, 2018; and that orthopedic qualified medical examiner (QME) Aubrey A. Swartz, M.D., was biased and was stricken as the QME in this matter.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Swartz's medical opinions were speculative and based on incorrect legal theories, thus not substantial evidence.
Favours Defendant prevailed
This led to the rescission of the prior Findings of Fact and Order and remand for further proceedings.
From the decision · page 5The above quoted testimony are examples of Swartz's testimony that clearly show his
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.
Found 20% lumbar spine whole person impairment; initially apportioned 75% industrial, later changed to 50% industrial, 25% conditioning exercises, 25% weight lifting incident; opinions not substantial evidence due to speculation and incorrect legal theory.
The WCJ and WCAB found Dr. Swartz's opinions speculative and based on incorrect legal theories, thus not substantial evidence.
From the decision · page 2Orthopedic QME Dr. Swartz evaluated applicant on August 17, 2017. Dr. Swartz examined applicant, took a history, and reviewed the medical record. He stated that, "The issue of cumulative trauma appears to be reasonable in view of all of the physical requirements of his job as a firefighter over many years." (Joint Exh. A, Dr. Swartz, August 17, 2017, p. 9.) Dr. Swartz determined that applicant's condition had reached permanent and stationary (P&S) status as of the date of the evaluation (Joint Exh. A, p. 10) and that applicant had 20% lumbar spine whole person impairment (WPI). (Joint Exh. A, p. 12.) He then noted that:
Concluded urological disorders were industrially related to spine surgery; condition not at MMI as of October 2016; apportionment entirely industrial for urological issues.
From the decision · page 2On October 11, 2016, applicant was evaluated by urology QME Dr. Sparkuhl. After examining applicant, taking a history, and reviewing the medical record, Dr. Sparkuhl stated:
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 (Appeals Board en banc)
Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.
Applied to evaluate Dr. Swartz's opinions and determine they were not substantial evidence.
From the decision · page 3To be substantial evidence a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative or based on incorrect legal theories, 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 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Swartz's deposition testimony showed opinions based on speculation and incorrect legal theories
From the decision · page 5The above quoted testimony are examples of Swartz's testimony that clearly show his
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.