ADJ11387984 — California WCAB decision

What the panel ordered

Petition for reconsideration denied.

Petition for reconsideration filed by defendants challenging the Findings and Award dated January 15, 2021, which awarded ongoing temporary disability to applicant; WCJ report recommended denial of reconsideration.

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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.

Temporary disabilityApplicant prevailedleft knee

The WCJ found the PTP Dr. Tabibian's medical opinions more substantial and persuasive than the PQME Dr. Salkinder's, particularly regarding MMI and ongoing temporary disability, supported by applicant's credible testimony and correct application of AMA Guides definition of MMI.

From the decision · page 3Defendants' petition contends that by the findings and award, the undersigned acted without and in excess of his power, and that the findings of fact do not support the decision, finding, or order, and the evidence does not justify the findings of fact. More specifically, the petition contends that the Panel Qualified Medical Evaluator (PQME) report of Gustav Salkinder, M.D. is substantial medical evidence and that the undersigned should have relied on the medical expert opinions of Dr. Salkinder instead of relying on the medical expert opinions of primary treating physician (PTP) Behnam Sam Tabibian, M.D. regarding maximal medical improvement (MMI) and temporary disability.

The facts that decided it

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

Applicant injured her left knee on June 7, 2018, while employed as a visual designer moving furniture.

Favours Applicant prevailed

This fact established the injury and employment relationship, which was undisputed and foundational to the claim for temporary disability.

From the decision · page 3At trial on October 26, 2020, the parties stipulated that the applicant, while employed on June 7, 2018 as a visual designer, Occupational Group Number 360, at Saugus, California, by Simply Discount Furniture, sustained injury arising out of and in the course of employment to her left knee, and at the time of injury the employer's workers' compensation carrier was the Hartford Insurance Company of the Midwest. There was no evidence that applicant injured her right knee or bilateral lower extremities other than the left knee.

PTP Dr. Tabibian's medical opinions were more substantial, persuasive, and consistent with applicant's credible testimony than PQME Dr. Salkinder's opinions.

Favours Applicant prevailed

The WCJ relied on Dr. Tabibian's opinions to find ongoing temporary disability and that applicant had not reached MMI, which supported the award of benefits.

From the decision · page 3Based on the medical expert opinions of PTP Dr. Behnam Sam Tabibian, which were found to be more substantial and persuasive than those of the Panel Qualified Medical Evaluator (PQME), Dr. Gustav Salkinder, it was found that applicant, has not reached maximal medical improvement

Dr. Salkinder's definition of MMI was based on a New Mexico statute and not the AMA Guides, and he did not adequately explain how applicant met MMI.

Favours Applicant prevailed

This undermined the persuasiveness of Dr. Salkinder's opinions and supported the rejection of his report in favor of Dr. Tabibian's.

From the decision · page 6because ongoing treatment has not been provided, and per Dr. Tabibian and applicant's credible testimony, her condition has worsened. Dr. Salkinder does not explain how and why applicant's condition met the definition of MMI in the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, although he does provide a definition in his report. Unfortunately, Dr. Salkinder's definition of MMI appears to be taken from a New Mexico statute regarding unemployment benefits and not the AMA Guides, Fifth Edition.

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.

PTPRelied upon · orthopedics

Found applicant has not reached maximal medical improvement (MMI) and has ongoing temporary disability due to left knee injury; recommended further treatment and referral to orthopedic surgeon.

His opinions were found more substantial, persuasive, and consistent with applicant's credible testimony than those of the PQME, and based on relevant facts, adequate history, reasonable medical probability, and correct legal theories including AMA Guides definition of MMI.

From the decision · page 3Based on the medical expert opinions of PTP Dr. Behnam Sam Tabibian, which were found to be more substantial and persuasive than those of the Panel Qualified Medical Evaluator (PQME), Dr. Gustav Salkinder, it was found that applicant, has not reached maximal medical improvement

QMERejected · orthopedics

Provided a definition of MMI based on a New Mexico statute unrelated to AMA Guides; his opinions were found less persuasive and not adequately reasoned regarding MMI and temporary disability.

His definition of MMI was inconsistent with AMA Guides and lacked explanation on how applicant met MMI; his opinions were less substantial and persuasive than PTP's.

From the decision · page 3Defendants' petition contends that by the findings and award, the undersigned acted without and in excess of his power, and that the findings of fact do not support the decision, finding, or order, and the evidence does not justify the findings of fact. More specifically, the petition contends that the Panel Qualified Medical Evaluator (PQME) report of Gustav Salkinder, M.D. is substantial medical evidence and that the undersigned should have relied on the medical expert opinions of Dr. Salkinder instead of relying on the medical expert opinions of primary treating physician (PTP) Behnam Sam Tabibian, M.D. regarding maximal medical improvement (MMI) and temporary disability.

The rules the panel named

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

Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604

Substantial evidence must be supported by reasonable medical probability and proper reasoning, not guesswork or speculation.

The WCJ applied this standard to weigh the medical opinions of the PTP and PQME, finding the PTP's opinions more substantial and persuasive.

From the decision · page 4Defendants' petition correctly cites case law regarding substantial medical evidence. The Workers' Compensation Appeals Board (WCAB) has held, en banc, that "it is well established that any decision of the WCAB must be supported by substantial evidence." (Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604, 620, citing Labor Code § 5952(d), Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal. Comp. Cases 310], Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal. Comp. Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal. Comp. Cases 16].) "In this regard, it has been long established that, in order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability." (Escobedo, cited above, 70 Cal. Comp. Cases 604, 620, citing McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [33 Cal. Comp. Cases 660], Travelers Ins. Co. v. Industrial Acc. Com. (Odello) (1949) 33 Cal.2d 685, 687-688 [14 Cal. Comp. Cases 54], Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal. App.4th 1692, 1700-1702, 1705 [58 Cal. Comp. Cases 313].) "Also, a medical opinion is not

Definition of Maximal Medical Improvement (MMI) per AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition.

The WCJ applied the AMA Guides definition of MMI to determine that applicant had not reached MMI.

From the decision · page 6The AMA Guides, Fifth Edition definition of MMI is a "condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated." This does differ from the definition on which Dr. Salkinder apparently relied, and it does not describe the applicant's condition according to her PTP, Dr. Tabibian. Based on Dr. Tabibian's indication for additional physical therapy and referral to an orthopedic surgeon regarding a medial meniscus tear, it is found that Ms.

ADJ11387984 · April 9, 2021

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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