ADJ12202677 · June 18, 2025

The WCJ and Appeals Board found the ophthalmology QME reports substantial and adequate, rejecting the claim of eye injury and denying further record development on this issue.

From the decision · page 4We first address applicant's contentions with respect to claimed ophthalmic injury. Applicant asserts that treating physician Dr. Chanes identified "small vessel ischemic disease" of the eyes in reports dated June 10, 2020 and June 23, 2020. (Petition, at p. 2.) Applicant contends the WCJ should have ordered development of the medical record in response to these findings. (Ibid.)

The Appeals Board found no psychiatric QME evaluation was obtained before trial as required by law, and deferred permanent disability, apportionment, and attorney fees for psychiatric injury for further development.

From the decision · page 8However, defendant filed a DOR on November 7, 2024. At trial, the issue of permanent disability was submitted. Yet, there is no QME or agreed medical evaluator (AME) in psychology or psychiatry in violation of section 4061(i). Although the dissenting panelist appears to place responsibility for the failure to obtain such medical-legal reporting on applicant, it is defendant who filed the DOR without proceeding to a QME or AME and without a stipulation by applicant that she was not claiming permanent disability. Section 4061(i) clearly requires that the parties proceed to a medical-legal evaluation before a DOR is filed, and a defendant may not use an applicant's lack of diligence as an excuse to circumvent this statutory requirement.

Ophthalmology QME Dr. Sami and neurology QME Dr. Nudleman thoroughly evaluated applicant's eye condition and found no work-related injury.

Favours Defendant prevailed

Supported denial of claimed ophthalmic injury and no need to develop record further.

From the decision · page 5The appearance of a finding, the small vessel ischemic disease, does not necessarily mean it is related to a work injury. The applicant was evaluated and the condition was reviewed and the doctors did not find it was related to her injury. Dr. Nudleman did opine she had a 6%WPI before adjustment for age and occupation related to her headaches. Based on this court's review of the record there is no basis to develop the record. The issued raised in the petition as to her eyes was adequately addressed by the PQMEs in this case. The medical records submitted in this case, the PQME reports of Dr. Sami, ophthalmology, Dr. Nudleman, neurology, Dr. Ellis, internal medicine, and Dr. Lewis, orthopedics, Court Exhs. Xl-X4, are substantial medical evidence and the court does not find they are deficient, inaccurate, inconsistent or incomplete, or that additional evidence is needed to complete the record. This court finds no reason to augment the record, the medical evidence is substantial on the issue.

No psychiatric QME evaluation was obtained before trial despite defendant filing a Declaration of Readiness, violating Labor Code section 4061(i).

Favours Applicant prevailed

Required deferral of permanent disability, apportionment, and attorney fees issues for psychiatric injury for further development.

From the decision · page 8However, defendant filed a DOR on November 7, 2024. At trial, the issue of permanent disability was submitted. Yet, there is no QME or agreed medical evaluator (AME) in psychology or psychiatry in violation of section 4061(i). Although the dissenting panelist appears to place responsibility for the failure to obtain such medical-legal reporting on applicant, it is defendant who filed the DOR without proceeding to a QME or AME and without a stipulation by applicant that she was not claiming permanent disability. Section 4061(i) clearly requires that the parties proceed to a medical-legal evaluation before a DOR is filed, and a defendant may not use an applicant's lack of diligence as an excuse to circumvent this statutory requirement.

Diagnosed Major Depressive Disorder and Generalized Anxiety Disorder; requested authorization for treatment; noted symptoms related to chronic pain and visual difficulties.

Evaluated applicant's psychiatric condition; report considered but no QME evaluation obtained as required by law.

From the decision · page 7Here, applicant has sustained admitted injury to her psyche. (MOH, at p. 2:7; Findings of Fact No. 1.) Applicant has been evaluated by Dr. Flores in psychology, and the resulting "Doctor's First Report of Occupational Injury or Illness" is in evidence. (Ex. 2, Report of Nelson Flores, Ph.D., dated September 24, 2024.) Therein, Dr. Flores reviews applicant's subjective complaints, objective findings, and clinical presentation, and arrives at a diagnosis of Major Depressive Disorder and Generalized Anxiety Disorder. (Id. at p. 2.) Dr. Flores requests authorization for

Found applicant did not sustain industrial injury to her eyes; vision within normal limits; addressed small vessel ischemic disease as likely due to migraine headaches and deferred to neurologist.

Relied upon by WCJ and Appeals Board as substantial medical evidence on eye injury issue.

From the decision · page 5The appearance of a finding, the small vessel ischemic disease, does not necessarily mean it is related to a work injury. The applicant was evaluated and the condition was reviewed and the doctors did not find it was related to her injury. Dr. Nudleman did opine she had a 6%WPI before adjustment for age and occupation related to her headaches. Based on this court's review of the record there is no basis to develop the record. The issued raised in the petition as to her eyes was adequately addressed by the PQMEs in this case. The medical records submitted in this case, the PQME reports of Dr. Sami, ophthalmology, Dr. Nudleman, neurology, Dr. Ellis, internal medicine, and Dr. Lewis, orthopedics, Court Exhs. Xl-X4, are substantial medical evidence and the court does not find they are deficient, inaccurate, inconsistent or incomplete, or that additional evidence is needed to complete the record. This court finds no reason to augment the record, the medical evidence is substantial on the issue.

Evaluated applicant's condition including headaches; opined 6% WPI before adjustment for age and occupation related to headaches; found no relation of small vessel ischemic disease to work injury.

Relied upon by WCJ and Appeals Board as substantial medical evidence on eye injury issue.

From the decision · page 5The appearance of a finding, the small vessel ischemic disease, does not necessarily mean it is related to a work injury. The applicant was evaluated and the condition was reviewed and the doctors did not find it was related to her injury. Dr. Nudleman did opine she had a 6%WPI before adjustment for age and occupation related to her headaches. Based on this court's review of the record there is no basis to develop the record. The issued raised in the petition as to her eyes was adequately addressed by the PQMEs in this case. The medical records submitted in this case, the PQME reports of Dr. Sami, ophthalmology, Dr. Nudleman, neurology, Dr. Ellis, internal medicine, and Dr. Lewis, orthopedics, Court Exhs. Xl-X4, are substantial medical evidence and the court does not find they are deficient, inaccurate, inconsistent or incomplete, or that additional evidence is needed to complete the record. This court finds no reason to augment the record, the medical evidence is substantial on the issue.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

Applied to evaluate medical evidence for injury and disability determinations.

From the decision · page 7v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "[T]he medical cause of an ailment is usually a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters." (Peter Kiewit Sons v. Industrial Acci. Com. (McLaughlin) (1965) 234 Cal.App.2d 831, 839 [30 Cal.Comp.Cases 188] ["[i]n a field which forces the experts into hypothesis, unaided lay judgment amounts to nothing more than speculation"].) The requirement for expert medical evidence exists throughout workers' compensation proceedings, including determination of temporary disability, permanent disability, apportionment, and causation of injury.3

Labor Code section 4061(i)

Section 4061(i) requires parties to proceed to a medical-legal evaluation before filing a Declaration of Readiness.

Applied to require QME evaluation for psychiatric injury before trial and DOR filing.

From the decision · page 8However, defendant filed a DOR on November 7, 2024. At trial, the issue of permanent disability was submitted. Yet, there is no QME or agreed medical evaluator (AME) in psychology or psychiatry in violation of section 4061(i). Although the dissenting panelist appears to place responsibility for the failure to obtain such medical-legal reporting on applicant, it is defendant who filed the DOR without proceeding to a QME or AME and without a stipulation by applicant that she was not claiming permanent disability. Section 4061(i) clearly requires that the parties proceed to a medical-legal evaluation before a DOR is filed, and a defendant may not use an applicant's lack of diligence as an excuse to circumvent this statutory requirement.

Applicant's testimony that she worked for defendant since approximately 2015 and was still employed as of March 2025.

From the decision · page 8We note that the WCJ's Opinion on Decision states that there is no permanent disability for the psychiatric component of this case under section 3208.3(d). However, this subdivision refers to a minimum of six-months of employment necessary for compensability in psychiatric claims. (Lab. Code, § 3208.3(d) ["no compensation shall be paid... for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months... [t]he six months of employment need not be continuous"].) Given applicant's undisputed trial testimony that when she sustained injury on December 30, 2018, she had worked for defendant since approximately 2015, and that she continued to work for IHOP as of March, 2025, the basis for the WCJ's citation to section 3208.3(d) as the reason for non-compensability of applicant's claim of psychiatric disability is unclear. Thus, upon return, the WCJ must clarify the basis for the WCJ's determination that no psychiatric impairment is available to applicant. (See Gangwish v. Workers' Comp. Appeals Bd. (Gangwish) (2001) 89 Cal.App.4th 1284, 1295 [66 Cal.Comp.Cases 584; Katzin v. Workers' Comp. Appeals Bd. (Katzin) (1992) 5 Cal.App.4th 703, 710 [57 Cal.Comp.Cases 230].)

Medical reports of ophthalmology QME Dr. Sami and neurology QME Dr. Nudleman thoroughly evaluating eye condition and finding no work-related injury.

From the decision · page 5The appearance of a finding, the small vessel ischemic disease, does not necessarily mean it is related to a work injury. The applicant was evaluated and the condition was reviewed and the doctors did not find it was related to her injury. Dr. Nudleman did opine she had a 6%WPI before adjustment for age and occupation related to her headaches. Based on this court's review of the record there is no basis to develop the record. The issued raised in the petition as to her eyes was adequately addressed by the PQMEs in this case. The medical records submitted in this case, the PQME reports of Dr. Sami, ophthalmology, Dr. Nudleman, neurology, Dr. Ellis, internal medicine, and Dr. Lewis, orthopedics, Court Exhs. Xl-X4, are substantial medical evidence and the court does not find they are deficient, inaccurate, inconsistent or incomplete, or that additional evidence is needed to complete the record. This court finds no reason to augment the record, the medical evidence is substantial on the issue.