Authorities as the decision cited them, with how this panel applied each one.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
Decisions of the Appeals Board must be based on admitted evidence in the record and supported by substantial evidence.
The WCAB noted the absence of an evidentiary record to support the WCJ's Order and emphasized the need for substantial evidence.
From the decision · page 2Decisions of the Appeals Board "must be based on admitted evidence in the
record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476
(Appeals Board en banc).) Furthermore, decisions of 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 [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].) An adequate and complete record is necessary to understand
the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, former § 10566, now § 10787 (eff. Jan. 1, 2020).) "It is the responsibility of the parties and the WCJ to
ensure that the record is complete when a case is submitted for decision on the record. At a
minimum, the record must contain, in properly organized form, the issues submitted for decision,
the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, at p.
475.)
Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803
The trier of fact has authority to determine what information may be provided to the QME if parties cannot agree.
The WCAB deferred to the trier of fact to decide on the provision of documents to the QME after evidentiary record creation.
From the decision · page 3It is acknowledged that the WCJ offered guidance regarding apportionment in the Order
for the parties to provide to the QME. The trier of fact has the authority to determine what
information may be provided to the QME if the parties cannot informally agree on what
information to provide to the QME. (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803,
1814 (Appeals Board en banc).) The trier of fact also "retains wide discretion in assessing the
contents of...parties' advocacy letters to ensure parties do not serve correspondence which could
confuse or misdirect the attention of a medical examiner, even if that `communication' does not
expressly contain, reference, or enclose `information.'" (Maxham v. California Department of
Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136, 147 (Appeals Board en banc).)
Maxham v. California Department of Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136
The trier of fact retains wide discretion in assessing parties' advocacy letters to ensure no confusion or misdirection of the medical examiner.
The WCAB recognized the WCJ's discretion in controlling advocacy letters to the QME.
From the decision · page 3It is acknowledged that the WCJ offered guidance regarding apportionment in the Order
for the parties to provide to the QME. The trier of fact has the authority to determine what
information may be provided to the QME if the parties cannot informally agree on what
information to provide to the QME. (Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803,
1814 (Appeals Board en banc).) The trier of fact also "retains wide discretion in assessing the
contents of...parties' advocacy letters to ensure parties do not serve correspondence which could
confuse or misdirect the attention of a medical examiner, even if that `communication' does not
expressly contain, reference, or enclose `information.'" (Maxham v. California Department of
Corrections and Rehabilitation (2017) 82 Cal.Comp.Cases 136, 147 (Appeals Board en banc).)
Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555
Physicians in workers' compensation matters must be educated by the parties on the correct legal standards of apportionment.
The WCAB noted the importance of educating the QME on legal standards to ensure substantial medical evidence.
From the decision · page 3We note that "[p]hysicians in workers' compensation matters must...be educated by the
parties on the correct legal standards of apportionment." (Gay v. Workers' Comp. Appeals Bd.
(1979) 96 Cal.App.3d 555 [44 Cal.Comp.Cases 817], 563, citations omitted.) It may be incumbent
on the parties to educate the QME regarding the legal standards of apportionment in order to ensure
the physician's report is substantial medical evidence. (See Zemke v. Workmen's Comp. Appeals
Bd. (1968) 68 Cal.2d 794, 798 [33 Cal.Comp.Cases 358] ["an expert's opinion which does not rest
upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial
evidence upon which the board may base an apportionment finding"].) Consequently, we cannot
conclude that it is per se improper for a party to provide a QME with decisions addressing
apportionment or discuss those decisions in a cover letter, but we will defer determination of
whether applicant may provide the proposed documents to the QME to the trier of fact in the first
instance following creation of an evidentiary record.
Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794
An expert's opinion based on incorrect legal theory cannot constitute substantial evidence for apportionment findings.
The WCAB cited this to emphasize the need for correct legal theory in QME opinions.
From the decision · page 3We note that "[p]hysicians in workers' compensation matters must...be educated by the
parties on the correct legal standards of apportionment." (Gay v. Workers' Comp. Appeals Bd.
(1979) 96 Cal.App.3d 555 [44 Cal.Comp.Cases 817], 563, citations omitted.) It may be incumbent
on the parties to educate the QME regarding the legal standards of apportionment in order to ensure
the physician's report is substantial medical evidence. (See Zemke v. Workmen's Comp. Appeals
Bd. (1968) 68 Cal.2d 794, 798 [33 Cal.Comp.Cases 358] ["an expert's opinion which does not rest
upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial
evidence upon which the board may base an apportionment finding"].) Consequently, we cannot
conclude that it is per se improper for a party to provide a QME with decisions addressing
apportionment or discuss those decisions in a cover letter, but we will defer determination of
whether applicant may provide the proposed documents to the QME to the trier of fact in the first
instance following creation of an evidentiary record.