What the panel treated as outcome-determinative, and which side it favoured.
No medical records or reports from prior to 2018 were reviewed by QMEs, so opinions on P&S date prior to 2018 were speculative and not substantial evidence.
Favours Defendant prevailed
This fact led to the finding that permanent disability indemnity payments should commence as of March 21, 2018, not earlier.
From the decision · page 3Applicant's orthopedic QME Dr. Einbund performed a physical examination of applicant,
reviewed medical records and numerous radiology reports, and took a detailed history.
Dr. Einbund opined that applicant "became permanent and stationary approximately three months
following his retirement from professional hockey" in approximately October 1980. (Ex. 1,
Dr. Einbund's March 21, 2018, report, p. 17.) However, the earliest medical records reviewed by
Dr. Einbund were diagnostic studies from 2018. (Ex. 1, Report of QME Michael Einbund, M.D.,
dated March 21, 2018, pp. 13-16.3) Because Dr. Einbund did not review medical records or reports
from prior to 2018, his opinion that applicant was permanent and stationary in 1981 is based on
speculation and conjecture and therefore is not substantial medical evidence. (Emphasis added;
Escobedo, supra, at 621; see also Hegglin, supra; Place, supra; Zemke, supra.)
Applicant continued to work until 2018 and had no injuries at subsequent employers.
Favours Defendant prevailed
Supported the finding that applicant was not permanently disabled prior to 2018.
From the decision · page 9After retirement the applicant worked for the Walker Group and in 1984 he started working
for Coldwell Banker. He testified that he had no injuries while working for Coldwell Banker.9
Subsequent to Coldwell Banker the applicant worked for Implied Consultants and then again for
Coldwell Banker until 2018 when he resigned [due] to an inability to show properties.10
Applicant's claim period was before January 1, 2005, so pre-SB 899 section 4062 applied to admissibility of QME reports.
Favours Applicant prevailed
Allowed the QME reports to be admitted and considered substantial evidence except as to P&S date prior to 2018.
From the decision · page 17The Undersigned Judge's finding of the applicant's date of injury pursuant to Labor Code
Section 5412 is not controlling in determining the process that applies to an applicant's claim. In
the matter at hand, the applicant filed a claim of injury for the period of September 30, 1968
through October 15, 1980. As the claim of injury is before January 1, 2005, section 4062, as it
existed before its amendment by SB 899, provides the procedure by which medical-legal reports
are to be obtained.