ADJ10798775 · July 21, 2025

The Appeals Board found the medical evidence insufficient to support the specific injury findings and apportionment opinions, leading to rescission of the F&A and remand for further proceedings.

From the decision · page 17In this case, we reject as unsupported by the evidence the stipulation of the parties that applicant sustained a specific injury of August 27, 2015 to the upper extremities, and a specific injury of March 5, 2017 to the lower extremities. Based on the lack of substantial medical evidence establishing that applicant sustained any specific injury and based on indications by both physicians that he sustained a cumulative injury to the upper extremities and may have sustained a cumulative injury to the lower extremities as well, we rescind the April 7, 2025 Joint Findings and Awards in their entirety for further hearing and development of the record consistent with this decision.

Medical evidence did not establish specific injury to lower extremities or mechanism of injury as cumulative trauma.

Favours Applicant prevailed

Led to rescission of F&A and remand for further proceedings to develop the record.

From the decision · page 17In this case, we reject as unsupported by the evidence the stipulation of the parties that applicant sustained a specific injury of August 27, 2015 to the upper extremities, and a specific injury of March 5, 2017 to the lower extremities. Based on the lack of substantial medical evidence establishing that applicant sustained any specific injury and based on indications by both physicians that he sustained a cumulative injury to the upper extremities and may have sustained a cumulative injury to the lower extremities as well, we rescind the April 7, 2025 Joint Findings and Awards in their entirety for further hearing and development of the record consistent with this decision.

Diagnosed severe carpal tunnel syndrome and ulnar nerve entrapment; assessed impairment and apportionment; expressed concerns about ability to maintain employment; reviewed vocational expert reports and provided work restrictions.

The WCJ relied on Dr. Brourman's impairment and apportionment opinions in the original F&A, but the Appeals Board found the medical evidence insufficient to support specific injury findings and remanded for further development.

From the decision · page 10Dr. Brourman, the QME in orthopedic surgery, examined applicant for his upper extremity

Addressed lower extremity injury; assessed impairment and apportionment; noted diabetic neuropathy and plantar fasciitis; reviewed vocational expert reports; found apportionment opinions lacking substantial medical evidence for mechanism of injury.

The Appeals Board found Dr. Levy's opinions insufficient to establish specific injury and mechanism, leading to rescission and remand.

From the decision · page 2at page 2, lines 30-40.) The issues that were ultimately submitted for decision were the extent of permanent disability "including claims for permanent total disability"; apportionment "including the issue of addition or combination of multiple impairments"; liability for self-procured medical treatment; the need for further medical treatment; attorney fees; and whether applicant's bilateral hands and fingers were injured on an industrial basis in case number ADJ10798774. (Id. at page 3, line 38 through page 4, line 11.) To decide these issues, the WCJ was provided with medical reports and deposition testimony from two Qualified Medical Evaluators (QMEs): Steven Brourman, M.D., an orthopedic surgeon specializing in hand surgery, who addressed applicant's upper extremity injury in case number ADJ10798774, and Leslie Levy, D.P.M., a podiatrist, who addressed applicant's lower extremity injury in case number ADJ10798775.

Labor Code sections 5701, 5906

Labor Code sections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings.

The Appeals Board exercised its discretionary authority to develop the record due to insufficient medical evidence.

From the decision · page 19The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[Labor Code sections] 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.)

From the decision · page 19Here, until the record is developed to address this question and clearly indicate whether as a matter of reasonable medical probability there is or is not a cumulative mechanism of injury to applicant's lower extremities, and not just that there "might be a CT," it is premature to decide any other issues. We also note that the issue of whether the vocational expert reports marked as Applicant's Exhibits 2, 3, and 4 were properly excluded is also premature because vocational expert opinions cannot rebut a scheduled rating until there is first substantial medical evidence of injury and disability to support such a rating.