ADJ12059744 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, affirming the WCJ's decision based on substantial evidence from QME Dr. Newton's reports over PTP Dr. Sall's conflicting opinions.

Defendant sought reconsideration of the Findings, Order and Award issued by the WCJ on December 6, 2022, which found applicant sustained injury arising out of and in the course of employment to cervical spine, left shoulder, and elbow, causing 28% permanent disability.

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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.

AOE/COEApplicant prevailedcervical spine · left shoulder · left elbow

The WCJ and panel found QME Dr. Newton's reports to be substantial evidence, well-reasoned and more persuasive than PTP Dr. Sall's conflicting opinions, supporting the finding of injury AOE/COE to cervical spine, left shoulder, and elbow.

From the decision · page 1Defendant seeks reconsideration of the Findings, Order and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on December 6, 2022, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his cervical spine, left shoulder, and elbow; and that the injury caused 28% permanent disability.

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.

QMERelied upon · orthopedic

Applicant sustained injury to cervical spine, left shoulder, and left elbow on 09/22/17 causing 28% permanent disability; detailed impairment rating based on AMA Guides; compensable injury to cervical spine as compensable consequence of left upper extremity injury; reports are thorough, well-reasoned, and more persuasive than PTP Dr. Sall's conflicting opinions.

Dr. Newton examined applicant, reviewed extensive medical records and diagnostics, and provided detailed explanations for impairment ratings and causation, which the WCJ and panel found substantial and persuasive over Dr. Sall's opinions.

From the decision · page 1Defendant seeks reconsideration of the Findings, Order and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on December 6, 2022, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to his cervical spine, left shoulder, and elbow; and that the injury caused 28% permanent disability.

PTPRejected · orthopedic

Assigned 2% whole person impairment for left shoulder and no impairment for left elbow; disagreed with Dr. Newton's impairment rating as not following AMA Guides requirements; reports conflicted with Dr. Newton's and were less persuasive.

Dr. Sall's reports conflicted with Dr. Newton's and were found less persuasive by the WCJ and panel due to lack of thorough record review and detailed analysis.

From the decision · page 4This applicant sustained injury to his left shoulder and left elbow on 09/22/17 and, developed a compensable injury to the cervical spine. Although the cervical spine is not documented in the records it is not unusual for an individual with a chronic left upper extremity condition to overcompensate and develop a strain injury to the adjacent cervical spine. Many of the muscles that are injured with the shoulder injury connect/extend from the shoulder to the neck. ... This applicant's cervical spine, left shoulder, and elbow condition/disability/ impairment is caused by the 09/22/17 injury. (Def. Exh. C, Dr, Newton, October 19, 2019, p. 13.) Dr. Newton received a report from secondary treating physician, Dr. Shapiro, wherein Dr. Shapiro recommended that applicant undergo reconstruction of his left shoulder AC joint with an allograft (tissue transplant). Dr. Newton stated, "I do feel that surgery proposed by Dr. Shapiro is indicated if the applicant wishes to have further treatment. He has a significant separation of the shoulder acromioclavicular joint." (Def. Exh. D, Dr. Newton, December 18, 2019, p. 2.) Applicant's PTP, Dr. Sall, issued a permanent and stationary (P&S) report on August 24, 2021. The diagnoses were left shoulder acromioclavicular separation, post-surgery, healed; and left elbow lateral epicondylitis, healed. (Def. Exh. A, Dr.

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 not be speculative and must be based on pertinent facts, adequate examination, accurate history, and reasoning in support of conclusions.

Applied to evaluate the substantiality of Dr. Newton's medical opinion.

From the decision · page 5DISCUSSION To be substantial evidence a medical opinion must not be speculative, and it must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and the reasoning in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Here, Dr. Newton examined applicant in September 2019, and December 2021. As noted above, in addition to performing physical, neurological, and motor examinations, he reviewed the extensive medical record, including various diagnostics and the x-rays performed at the December 2021 evaluation. He gave detailed explanations regarding his opinions as to the WPI caused by applicant's injury and he explained the basis for his opinion that applicant sustained injury to his left shoulder and left elbow on September 22, 2017, and developed a compensable injury to the cervical spine. (See App. Exh. 1, pp. 15 § 16; Def. Exh. C, p.

Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372

Relevant and considered opinion of one physician may constitute substantial evidence unless based on surmise, speculation, conjecture, or guess.

Applied to affirm reliance on Dr. Newton's opinion over conflicting opinions.

From the decision · page 7context, we note it is well established that the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence and the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137 [46 Cal.Comp.Cases 913].) As explained above, the reports from Dr. Newton constitute substantial evidence but his opinions conflict with those of Dr. Sall. When dealing with conflicting medical evidence it is the responsibility of the Appeals Board, including the WCJ, to consider and determine which of the doctors' opinions are based on pertinent facts, adequate examinations, and accurate histories, and which of the doctors' opinions are more consistent with the evidence underlying the injury claim. (Power v.

ADJ12059744 · February 17, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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