ADJ13081250 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; February 14, 2024 Findings and Award rescinded; matter returned to WCJ for further proceedings

Petition for Reconsideration of the February 14, 2024 Findings and Award granted; February 14, 2024 Findings and Award rescinded; matter returned to WCJ for further proceedings on substantiality of QME report

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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.

Medical treatment / UR / IMRApplicant prevailedback

The WCJ failed to address the merits of the applicant's contention that the QME report was not substantial evidence, which is required by law; the WCAB granted reconsideration and remanded for further proceedings to consider this issue.

From the decision · page 1Applicant seeks reconsideration of the February 14, 2024 Findings and Award ("F&A"), wherein the workers' compensation administrative law judge (WCJ) found applicant sustained a work-related injury to his back on March 13, 2017, but that applicant sustained no permanent disability as a result of the injury, that he did not require any further medical treatment, and that applicant was therefore due no further compensation. (F&A, at pp. 1§ 2.)1 Applicant asserts that the WCJ erred in basing her conclusions on the reporting of Panel Qualified Medical Examiner ("QME") Ronald Wolfson, M.D. because the reports are not substantial medical evidence.

What proof carried it

The evidence the panel weighed, by kind.

treatment coursefavours Defendant prevailed

Applicant did not submit evidence of efforts to obtain clarifications from QME regarding report deficiencies

From the decision · page 4First, the WCJ asserts that the issue is waived because applicant did not submit evidence that he had made efforts to obtain additional information or clarifications from the QME regarding the alleged deficiencies of the report. Although we sympathize with the WCJ here over applicant's apparent inaction, any such failure does not waive a claim that the QME Report does not constitute substantial evidence. Medical evidence either is or is not substantial, and a party's lack of effort to introduce other evidence does not convert otherwise insubstantial evidence into substantial evidence.

treatment coursefavours Defendant prevailed

Applicant did not raise issue relating to QME report at trial despite multiple motions; QME report was listed as joint exhibit

From the decision · page 5Third, the WCJ notes that despite having made multiple motions at trial, applicant's attorney did not raise any issue relating to the QME Report, and that the QME Report was listed as a joint exhibit. Although we are sympathetic to the WCJ's frustrations here, the same considerations as above apply PD was listed as an issue at trial, and the fact that the QME Report was listed as a joint exhibit does not mean that applicant conceded it to be substantial evidence, it merely means that applicant consented for it to be considered.

treatment coursefavours Defendant prevailed

Applicant failed to submit medical evidence at trial to establish permanent impairment or need for future medical treatment on an industrial basis

From the decision · page 5Finally, the WCJ points to applicant's failure to carry "his burden of proof to submit medical evidence at trial to establish that [he] sustained permanent impairment and/or need for future medical treatment on an industrial basis," and that, with discovery closed as of October 11, 2023, any such opportunity has passed. This again dodges the issue applicant's contention is that Dr. Wolfson's QME Report upon which the WCJ's conclusion was based is not substantial evidence. To the extent that applicant failed to submit contrary evidence, that is a different issue, and does not result in waiver of the argument that the QME report is not substantial.

ADJ13081250 · May 7, 2024

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

What proof carried it

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