What the panel ordered
Petition for Reconsideration granted; WCJ Findings and Order of February 8, 2024 rescinded; case returned for further proceedings including appointment of a new or agreed medical evaluator to obtain substantial medical evidence on industrial causation.
Applicant petitioned for reconsideration of the WCJ's February 8, 2024 Findings and Order denying industrial injury to the lower back; the WCJ had relied on PQME Dr. Sherman's reports and deposition; the WCAB granted reconsideration and rescinded the WCJ decision, returning the matter for further proceedings.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's denial of industrial causation was based on reliance on PQME Dr. Sherman's reports and applicant's non-credible testimony; the WCAB found Dr. Sherman's opinions inconsistent, speculative, and not substantial evidence, and granted reconsideration for further medical development.
From the decision · page 1Applicant has petitioned for reconsideration of the Findings of Fact and Order issued by the workers' compensation administrative law judge (WCJ) in this matter on February 8, 2024. In that decision, the WCJ found that applicant did not sustain industrial injury arising out of and in the course of employment to his lower back on November 10, 2018.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
PQME Dr. Sherman's medical opinions were inconsistent, speculative, and failed to meet reasonable medical probability standard.
Favours Applicant prevailed
This undermined the WCJ's reliance on his opinions to deny industrial causation, leading to granting reconsideration and remand for further medical development.
From the decision · page 11In this case, Dr. Sherman's speculation and contradictory opinions as set forth in his medical reporting and deposition testimony fails to rise to the level of substantiality.
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.
Initially assigned 0% whole person impairment for lumbar spine and no causation opinion until May 17, 2023 report; opinions were inconsistent, speculative, and failed to meet reasonable medical probability standard; deposition testimony showed inability to state with reasonable medical probability that applicant injured his back at work on November 10, 2018.
The WCAB found Dr. Sherman's medical opinions inconsistent and speculative, lacking substantial evidence to support industrial causation, and thus not reliable for the WCJ's denial of injury.
From the decision · page 2Defendants accepted injury to the right index finger, and disputed injury to the low back. The parties selected Jerrold Sherman, M.D. as the Panel Qualified Medical Evaluator (PQME) in orthopedic medicine. Dr. Sherman issued medical reports dated October 17, 2021, December 15, 2022, and May 17, 2023, and was deposed on July 27, 2023.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291; Lab. Code §§ 3600(a), 3202.5; Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346; E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc); Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399; Zemke v. Workmen's Comp. Appeals Bd.; People v. Bassett (1968) 69 Cal.2d 122
The employee bears the burden of proving injury arose out of and in the course of employment by preponderance of evidence; medical opinion must be based on reasonable medical probability and supported by reasoning to be substantial evidence.
The WCJ relied on PQME Dr. Sherman's medical opinions to deny industrial causation; the WCAB found those opinions inconsistent, speculative, and lacking substantial evidence, requiring further medical development.
From the decision · page 9The employee bears the burden of proving the injury arose out of and in the course of employment by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.) Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the particular circumstances of the case. (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346, 353 [67 Cal.Comp.Cases 51].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's inconsistent histories to physicians and in deposition undermined medical opinion reliability
From the decision · page 11At his subsequent deposition taken on July 27, 2023, however, he is then asked whether, based upon the inconsistent statements made by applicant to the physicians versus in his deposition, he can state with reasonable medical probability that applicant injured his back as he was now claiming. In response, he initially opines that perhaps the doctors at the industrial clinic may have been dismissive of his back condition given the finger injury. When asked if that was speculation on his part, he admitted that it was. (Deposition, pg. 16-17, lines 4-25, 7-11)
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.
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