ADJ12525621 — California WCAB decision

ADJ12525621 · January 14, 2022

Petition for reconsideration granted in part; Findings of Fact and Award affirmed except amended to find temporary total disability from April 23, 2021 through July 2, 2021, and deferring disability status after July 2, 2021.

Issues decided

Medical opinions weighed

Authorities named

District office

San Francisco

What the panel ordered

Defendant sought reconsideration of the Findings of Fact and Award issued by the WCJ on November 15, 2021, challenging the permanent and stationary date and temporary total disability period.

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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.

Permanent disability ratingDefendant prevailedneck · right shoulder · back

The QME Dr. Frieders' opinion that the applicant reached permanent and stationary status on April 22, 2021, was found not to be substantial evidence due to inadequate medical history and inconsistent statements.

From the decision · page 4In his May 18, 2021 report, QME Dr. Frieders stated that applicant's condition had reached a permanent and stationary status as of the April 22, 2021 re-evaluation. (Def. Exh. C, p. 10.) He then stated that, "If the applicant's current condition prevents him from working in a full capacity and if his employer is unable to accommodate industrially-related work restrictions, he should be placed on TTD." (Def. Exh. C, p. 12.) These two statements are inconsistent and the doctor did not provide any explanation of his reasoning or analysis in reaching his conclusions. Also, earlier in the report Dr. Frieders stated that no additional records were provided for his review and the only medical records he reviewed were his prior reports. (Def. Exh. C, p. 1.) Based thereon, it appears that his opinions are not based on an adequate medical history. For these reasons, his reports do not constitute substantial evidence as to applicant's disability status.

The facts that decided it

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

QME Dr. Frieders' opinion on permanent and stationary status was based on incomplete medical records and inconsistent statements.

Favours Defendant prevailed

This undermined the opinion's substantial evidence value, leading to its rejection.

From the decision · page 4In his May 18, 2021 report, QME Dr. Frieders stated that applicant's condition had reached a permanent and stationary status as of the April 22, 2021 re-evaluation. (Def. Exh. C, p. 10.) He then stated that, "If the applicant's current condition prevents him from working in a full capacity and if his employer is unable to accommodate industrially-related work restrictions, he should be placed on TTD." (Def. Exh. C, p. 12.) These two statements are inconsistent and the doctor did not provide any explanation of his reasoning or analysis in reaching his conclusions. Also, earlier in the report Dr. Frieders stated that no additional records were provided for his review and the only medical records he reviewed were his prior reports. (Def. Exh. C, p. 1.) Based thereon, it appears that his opinions are not based on an adequate medical history. For these reasons, his reports do not constitute substantial evidence as to applicant's disability status.

Dr. Graves' reports supported temporary total disability through July 2, 2021, with objective findings including MRI results.

Favours Applicant prevailed

This supported awarding temporary disability benefits for that period.

From the decision · page 5As to the award of temporary disability indemnity benefits, the WCJ noted that in each of his PR-2 reports, Dr. Graves stated that applicant was temporarily totally disabled. Dr. Graves had requested right shoulder and lumbar spine MRI studies and in his May 19, 2021 report "in light of the positive MRI results," he requested that applicant be evaluated by an orthopedic physician. (See App. Exh. 1, May 19, 2021, [EAMS pp. 10 - 11.) We agree with the WCJ that Dr. Graves' opinions as to applicant's disability status were supported by objective findings and that they are an appropriate basis for awarding temporary disability indemnity benefits. However, pursuant to AD Rule 9785:

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.

QMERejected · chiropractic

Opined applicant reached permanent and stationary status on April 22, 2021, but opinion was not substantial evidence due to inadequate medical history and inconsistent statements.

Opinion not based on adequate medical history and inconsistent statements regarding disability status.

From the decision · page 4In his May 18, 2021 report, QME Dr. Frieders stated that applicant's condition had reached a permanent and stationary status as of the April 22, 2021 re-evaluation. (Def. Exh. C, p. 10.) He then stated that, "If the applicant's current condition prevents him from working in a full capacity and if his employer is unable to accommodate industrially-related work restrictions, he should be placed on TTD." (Def. Exh. C, p. 12.) These two statements are inconsistent and the doctor did not provide any explanation of his reasoning or analysis in reaching his conclusions. Also, earlier in the report Dr. Frieders stated that no additional records were provided for his review and the only medical records he reviewed were his prior reports. (Def. Exh. C, p. 1.) Based thereon, it appears that his opinions are not based on an adequate medical history. For these reasons, his reports do not constitute substantial evidence as to applicant's disability status.

PTPRelied upon · chiropractic

Provided reports supporting temporary total disability through July 2, 2021, based on objective findings including MRI results.

Reports supported disability status through July 2, 2021, and were substantial evidence for awarding temporary disability benefits for that period.

From the decision · page 5As to the award of temporary disability indemnity benefits, the WCJ noted that in each of his PR-2 reports, Dr. Graves stated that applicant was temporarily totally disabled. Dr. Graves had requested right shoulder and lumbar spine MRI studies and in his May 19, 2021 report "in light of the positive MRI results," he requested that applicant be evaluated by an orthopedic physician. (See App. Exh. 1, May 19, 2021, [EAMS pp. 10 - 11.) We agree with the WCJ that Dr. Graves' opinions as to applicant's disability status were supported by objective findings and that they are an appropriate basis for awarding temporary disability indemnity benefits. However, pursuant to AD Rule 9785:

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)

The QME's opinion was rejected for lack of adequate medical history and inconsistent reasoning.

From the decision · page 4In his May 18, 2021 report, QME Dr. Frieders stated that applicant's condition had reached a permanent and stationary status as of the April 22, 2021 re-evaluation. (Def. Exh. C, p. 10.) He then stated that, "If the applicant's current condition prevents him from working in a full capacity and if his employer is unable to accommodate industrially-related work restrictions, he should be placed on TTD." (Def. Exh. C, p. 12.) These two statements are inconsistent and the doctor did not provide any explanation of his reasoning or analysis in reaching his conclusions. Also, earlier in the report Dr. Frieders stated that no additional records were provided for his review and the only medical records he reviewed were his prior reports. (Def. Exh. C, p. 1.) Based thereon, it appears that his opinions are not based on an adequate medical history. For these reasons, his reports do not constitute substantial evidence as to applicant's disability status.

Cal. Code Regs., tit. 8, § 9785(f)(8)

A primary treating physician must submit timely progress reports on disability status (Cal. Code Regs., tit. 8, § 9785(f)(8)).

The issue of disability after July 2, 2021 was deferred due to lack of timely medical reports.

From the decision · page 5The last report in evidence, from Dr. Graves, is dated May 19, 2021, and it states that applicant would remain temporarily totally disabled until July 2, 2021, (i.e. 45 days after the May 19, 2021 treatment report) and that, "[H]is work status will be updated as his condition improves." (App. Exh. 1, May 19, 2021, [EAMS p. 12.) Although, as discussed above, Dr. Graves' report is substantial evidence that applicant was temporarily totally disabled for the period through July 2, 2021, it is not evidence that he was temporarily totally disabled thereafter. It is important to note that we are not addressing the issue of whether applicant is or is not entitled to temporary disability indemnity benefits after July 2, 2021. We are simply saying that in order for applicant to be entitled to those benefits, there must be timely medical reports (per AD Rule 9785(f)(8), noted above) addressing his disability status. Under the circumstances of this matter it is appropriate that the issue of applicant's entitlement to temporary disability indemnity benefits after July 2, 2021, is deferred.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

QME Dr. Frieders' reports lacked adequate medical history and were inconsistent, undermining their evidentiary value.

From the decision · page 4In his May 18, 2021 report, QME Dr. Frieders stated that applicant's condition had reached a permanent and stationary status as of the April 22, 2021 re-evaluation. (Def. Exh. C, p. 10.) He then stated that, "If the applicant's current condition prevents him from working in a full capacity and if his employer is unable to accommodate industrially-related work restrictions, he should be placed on TTD." (Def. Exh. C, p. 12.) These two statements are inconsistent and the doctor did not provide any explanation of his reasoning or analysis in reaching his conclusions. Also, earlier in the report Dr. Frieders stated that no additional records were provided for his review and the only medical records he reviewed were his prior reports. (Def. Exh. C, p. 1.) Based thereon, it appears that his opinions are not based on an adequate medical history. For these reasons, his reports do not constitute substantial evidence as to applicant's disability status.

Medical recordsfavours Applicant prevailed

Dr. Graves' PR-2 reports supported temporary total disability through July 2, 2021, with objective findings including MRI results.

From the decision · page 5As to the award of temporary disability indemnity benefits, the WCJ noted that in each of his PR-2 reports, Dr. Graves stated that applicant was temporarily totally disabled. Dr. Graves had requested right shoulder and lumbar spine MRI studies and in his May 19, 2021 report "in light of the positive MRI results," he requested that applicant be evaluated by an orthopedic physician. (See App. Exh. 1, May 19, 2021, [EAMS pp. 10 - 11.) We agree with the WCJ that Dr. Graves' opinions as to applicant's disability status were supported by objective findings and that they are an appropriate basis for awarding temporary disability indemnity benefits. However, pursuant to AD Rule 9785: