What the panel ordered
Petition for reconsideration granted; Findings of Fact and Orders of August 3, 2021, rescinded; matter returned to WCJ for further proceedings and new decision.
Applicant seeks reconsideration of the Findings of Fact and Orders issued by the WCJ on August 3, 2021, which denied injury claims and an additional QME panel in ophthalmology.
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 record lacked substantial evidence on injury AOE/COE due to absence of ophthalmological evaluation, and the Appeals Board has a duty to develop the record further when evidence is insufficient.
From the decision · page 3Here, Dr. Regev and Dr. Barkodar both recommended that applicant be examined by an ophthalmologist because the issue of injury to his eyes was beyond their area of expertise. The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Appeals Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board may direct the augmentation of the medical record where there are material deficiencies in specific medical records or reports. (Id. at 1121-1122.) Again, both doctors stated that they found no evidence of an industrial neurological injury, but as to the issue of an ophthalmological injury, applicant would need to be evaluated by an ophthalmologist. Thus, although the WCJ noted that that applicant testified credibly regarding the light exposure, and that there is corroboration for that exposure (Report, p. 6), there is no medical evidence in the trial record that addresses the issue of injury AOE/COE and the record must be further developed.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Both Dr. Regev and Dr. Barkodar recommended evaluation by an ophthalmologist as the issue was beyond their expertise.
Favours Applicant prevailed
The lack of ophthalmological evaluation meant the record was insufficient to decide injury AOE/COE, requiring further development.
From the decision · page 3Here, Dr. Regev and Dr. Barkodar both recommended that applicant be examined by an ophthalmologist because the issue of injury to his eyes was beyond their area of expertise. The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Appeals Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board may direct the augmentation of the medical record where there are material deficiencies in specific medical records or reports. (Id. at 1121-1122.) Again, both doctors stated that they found no evidence of an industrial neurological injury, but as to the issue of an ophthalmological injury, applicant would need to be evaluated by an ophthalmologist. Thus, although the WCJ noted that that applicant testified credibly regarding the light exposure, and that there is corroboration for that exposure (Report, p. 6), there is no medical evidence in the trial record that addresses the issue of injury AOE/COE and the record must be further developed.
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.
No evidence of active intracranial disorder; recommended ophthalmology evaluation for eye injury.
From the decision · page 2BACKGROUND Applicant claimed injury to his eyes and to his head (in the form of headaches) while employed by defendant as an administrative assistant on February 7, 2020 (ADJ13056566), and while employed by defendant on February 21, 2020 (ADJ13056565). Applicant received treatment from neurologist Isaac Regev, M.D., on June 29, 2020. Dr. Regev diagnosed, "Headaches and visual changes in a patient with LED light exposure." (App. Exh. 1, Isaac Regev, M.D., June 29, 2020, p. 4 (original in upper case).) He then explained:
No evidence of industrial neurological injury; recommended evaluation by ophthalmology expert for possible impairment.
From the decision · page 2On July 16, 2020, applicant was evaluated by QME Dr. Barkodar. After examining applicant, taking a history and reviewing the records he was provide, Dr. Barkodar concluded:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5952(d)
Any award, order, or decision of the Appeals Board must be supported by substantial evidence.
The WCJ must utilize expert medical opinion; opinions beyond expertise are not substantial evidence.
From the decision · page 3Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. 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].) When deciding a medical issue, the WCJ must utilize expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) A medical expert opinion that is beyond the physician's expertise is not substantial evidence. (Genlyte Group v. Workers' Comp. Appeals Bd. (Zavala) (2008) 158 Cal.App.4th 705 [73 Cal.Comp.Cases 6]; see Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692 [58 Cal.Comp.Cases 313].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant testified credibly regarding light exposure; corroboration exists for exposure.
From the decision · page 3Here, Dr. Regev and Dr. Barkodar both recommended that applicant be examined by an ophthalmologist because the issue of injury to his eyes was beyond their area of expertise. The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Appeals Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board may direct the augmentation of the medical record where there are material deficiencies in specific medical records or reports. (Id. at 1121-1122.) Again, both doctors stated that they found no evidence of an industrial neurological injury, but as to the issue of an ophthalmological injury, applicant would need to be evaluated by an ophthalmologist. Thus, although the WCJ noted that that applicant testified credibly regarding the light exposure, and that there is corroboration for that exposure (Report, p. 6), there is no medical evidence in the trial record that addresses the issue of injury AOE/COE and the record must be further developed.
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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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