ADJ13070871 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; Findings and Award of WCJ affirmed.

Defendant sought reconsideration of the Findings and Award issued by the WCJ on June 28, 2023, which was denied by the Appeals Board panel on September 15, 2023.

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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 · low back

The WCJ found and the Appeals Board affirmed that applicant sustained injury arising out of and in the course of employment to her cervical spine and low back, supported by substantial evidence including medical reports and testimony.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on June 28, 2023, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her cervical spine and low back, that the injury caused 55% permanent disability, and that the record needs to be further developed regarding whether applicant had additional periods of temporary disability prior April 4, 2022.

Permanent disability rating

The facts that decided it

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

Dr. Morley's April 19, 2023 report complied with Labor Code section 5703 and was properly admitted into evidence.

Favours Applicant prevailed

This report was found substantial evidence supporting the permanent disability rating and rejection of opposing medical opinions.

From the decision · page 5Having reviewed the April 19, 2023 report from Dr. Morley (App. Exh. 8), it is clear that the doctor complied with the requirements of section 5703. Therefore, we agree with the WCJ that the report was properly admitted into evidence.

Dr. Smallie's reports were conclusory, incomplete, illogical, and based on inadequate histories, failing to comply with AMA Guides and lacking explanation for apportionment.

Favours Applicant prevailed

These deficiencies led to rejection of Dr. Smallie's reports as substantial evidence, supporting the applicant's permanent disability rating.

From the decision · page 17Here, Dr. Smallie's reports are conclusory, incomplete, illogical, and based on inadequate histories. It is also possible that Dr. Morley is correct that Dr. Smallie's physical examination does not comply with the AMA Guides, but this cannot be verified since the addendums describing those exams were not submitted into evidence. (Exhibit 8 at p. 8.) For example, Dr. Smallie stated that applicant's low back condition worsened while working for defendant (Exhibit A at p. 2.) However, he inexplicably found that applicant's impairment was far less than described by Dr. Jamasbi. (Exhibit 8, p. 2.) He also did not address the worsening in her spine as described in the two MRIs. In fact, his described impairment of 8% is less than the value of the 15% stipulations for case number ADJ5798023, and Dr. Smallie failed to explain this discrepancy. Next, as observed by Dr. Morley, Dr. Smallie had three distinct apportionment determinations, but only provided impairment to two body parts. Moreover, Dr. Smallie failed to explain why he would apportion to applicant's multiple

Applicant's credible testimony that she resigned due to injury and inability to perform job duties.

Favours Applicant prevailed

Supported the award of temporary disability indemnity for the period April 4, 2022 through September 7, 2022.

From the decision · page 20Here, Dr. Morley's reports reflect that applicant was temporarily disabled for at least the period April 4, 2022 through September 6, 2022, when she became maximally medically improved. (Exhibit 1, Exhibit 7, Exhibit F, Exhibit 8.) Applicant's resignation does not affect her entitlement to temporary disability because her credible and unrebutted testimony reflects that her resignation was as a result of her injury. In deposition and in trial, she testified that she resigned because she could no longer physically perform her job and that the work restrictions that her treater provided in reports for the 2006 claim were a disaster and not working. (Exhibit E, at pp. 19:3-19:12; 23:24- 25:7.) Therefore, an award of temporary disability is made for the period April 4, 2022 to September 7, 2022. Since these payments were ordered to be made more than two years from the date of injury, they were ordered payable at 2023 rates. (Lab. Code, § 4661.5 [when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made].)

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.

PTPRelied upon

Dr. Morley's April 19, 2023 report was found to be substantial evidence, well reasoned, not speculative, based on accurate history and complete examination, supporting a 55% permanent disability rating and rejecting Dr. Smallie's reports.

The WCJ and Appeals Board found Dr. Morley's report complied with Labor Code section 5703 and was not based on surmise, speculation, conjecture, or guess, thus substantial evidence.

From the decision · page 5Having reviewed the April 19, 2023 report from Dr. Morley (App. Exh. 8), it is clear that the doctor complied with the requirements of section 5703. Therefore, we agree with the WCJ that the report was properly admitted into evidence.

QMERejected · chiropractic

Dr. Smallie's reports were found conclusory, incomplete, illogical, based on inadequate histories, and not substantial evidence, thus not the basis of the award.

The reports lacked adequate examination, did not comply with AMA Guides, had unexplained apportionment, and failed to address worsening condition and treatment reports.

From the decision · page 17Here, Dr. Smallie's reports are conclusory, incomplete, illogical, and based on inadequate histories. It is also possible that Dr. Morley is correct that Dr. Smallie's physical examination does not comply with the AMA Guides, but this cannot be verified since the addendums describing those exams were not submitted into evidence. (Exhibit 8 at p. 8.) For example, Dr. Smallie stated that applicant's low back condition worsened while working for defendant (Exhibit A at p. 2.) However, he inexplicably found that applicant's impairment was far less than described by Dr. Jamasbi. (Exhibit 8, p. 2.) He also did not address the worsening in her spine as described in the two MRIs. In fact, his described impairment of 8% is less than the value of the 15% stipulations for case number ADJ5798023, and Dr. Smallie failed to explain this discrepancy. Next, as observed by Dr. Morley, Dr. Smallie had three distinct apportionment determinations, but only provided impairment to two body parts. Moreover, Dr. Smallie failed to explain why he would apportion to applicant's multiple

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5703

Reports of attending or examining physicians are admissible if they comply with Labor Code section 5703 requirements.

The Appeals Board found Dr. Morley's report complied with section 5703 and was properly admitted into evidence.

From the decision · page 5DISCUSSION Pursuant to Labor Code section 5703: The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: (a) Reports of attending or examining physicians. (1) Statements concerning any bill for services are admissible only if made under penalty of perjury that they are true and correct to the best knowledge of the physician. (2) In addition, reports are admissible under this subdivision only if the physician has further stated in the body of the report that there has not been a violation of Section 139.3 and that the contents of the report are true and correct to the best knowledge of the physician. The statement shall be made under penalty of perjury. (Lab. Code, § 5703.)2

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning to constitute substantial evidence.

The Appeals Board found Dr. Smallie's reports were not substantial evidence as they were conclusory, incomplete, and illogical.

From the decision · page 17The QME Reports Cannot be the Basis of an Award All decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627.) 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).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169.)

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible and unrebutted testimony that she resigned due to injury and inability to perform job duties.

From the decision · page 20Here, Dr. Morley's reports reflect that applicant was temporarily disabled for at least the period April 4, 2022 through September 6, 2022, when she became maximally medically improved. (Exhibit 1, Exhibit 7, Exhibit F, Exhibit 8.) Applicant's resignation does not affect her entitlement to temporary disability because her credible and unrebutted testimony reflects that her resignation was as a result of her injury. In deposition and in trial, she testified that she resigned because she could no longer physically perform her job and that the work restrictions that her treater provided in reports for the 2006 claim were a disaster and not working. (Exhibit E, at pp. 19:3-19:12; 23:24- 25:7.) Therefore, an award of temporary disability is made for the period April 4, 2022 to September 7, 2022. Since these payments were ordered to be made more than two years from the date of injury, they were ordered payable at 2023 rates. (Lab. Code, § 4661.5 [when any temporary total disability indemnity payment is made two years or more from the date of injury, the amount of this payment shall be computed in accordance with the temporary disability indemnity average weekly earnings amount specified in Section 4453 in effect on the date each temporary total disability payment is made].)

Medical recordsfavours Applicant prevailed

Dr. Morley's well-reasoned and complete medical report supporting permanent disability rating.

From the decision · page 18Unlike the report from the QME, Dr. Morley's report is well reasoned, not speculative, not conclusory, based on an accurate history, and based on a complete examination. He also provided persuasive reasoning regarding why applicant's impairments should be added as opposed to combined. (Id. at p. 36.) Accordingly, his report was found to be substantial evidence, and it formed the basis of the Award.

ADJ13070871 · September 15, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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