What the panel ordered
Petition for Reconsideration GRANTED; November 14, 2024 Findings of Fact and Order RESCINDED; matter RETURNED to trial level for further proceedings.
Defendant sought reconsideration of the November 14, 2024 Amended Findings of Fact and Order, which found applicant had not reached MMI and was entitled to retroactive temporary disability and attorney's fees. The WCAB granted reconsideration, rescinded the F&O, and remanded for further proceedings.
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 WCJ's finding that applicant had not reached MMI and was entitled to retroactive temporary disability benefits was not supported by substantial evidence. QME Dr. Purcell found applicant had reached MMI, and the WCJ did not point to specific evidence to support a contrary finding. The finding and related attorney's fees were rescinded and the matter remanded.
From the decision · page 6reports of Dr. Kharrazi, Dr. Purcell, Dr. Kropf, Dr. Lebow, and the post-trial briefing of the parties, it is found that Applicant has not yet reached Maximum Medical Improvement." (11/14/24 Opinion, p. 3.) However, the WCJ did not point to any specific evidence or testimony to support this finding. Instead, QME Dr. Purcell found that applicant had reached MMI. (Jt. Ex. A, p. 23; Jt. Ex. C, p. 3.) The medical evidence and applicant's testimony do not provide substantial evidence otherwise. Thus, the finding regarding MMI and temporary disability benefits must be rescinded. As there was a lack of substantial evidence to support the finding regarding MMI and therefore the provision of temporary disability benefits, the attorney's fees based on this finding must be rescinded as well.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Purcell found applicant had reached MMI as of January 29, 2024, and confirmed this in a supplemental report.
Favours Defendant prevailed
This was the only substantial medical evidence on MMI status; the WCJ did not cite contrary evidence.
From the decision · page 2In his Report of January 29, 2024, QME Dr. Graham Purcell, an orthopedic surgeon, found that applicant had reached MMI status as of January 29, 2024. (Jt. Ex. A, Report of QME Dr. Purcell dated 1/29/24, p. 23.) Dr. Purcell confirmed his finding of MMI of January 29, 2024, in his supplemental report of February 21, 2024. (Jt. Ex. C, Supp. Report of QME Dr. Purcell dated 2/21/24, p. 3.)
WCJ did not make findings regarding disputed body parts (hips, sleep, nervous system), only back and right knee.
Favours Defendant prevailed
Without findings on all claimed body parts, MMI status could not be properly determined.
From the decision · page 5First, the WCJ did not make any finding regarding the disputed body parts of hips, sleep, and nervous system. (MOE/SOE, p. 2.) The parties only stipulated, and the WCJ found, that applicant had sustained industrial injury to his back and right knee. (MOE/SOE, p. 2; F&O, p. 1.) Without a finding as to the remaining body parts, it is not possible to determine if applicant had reached MMI.
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.
Found applicant had reached MMI as of January 29, 2024, and confirmed in supplemental report.
QME Dr. Purcell's opinion was relied upon as substantial evidence for MMI status.
From the decision · page 2In his Report of January 29, 2024, QME Dr. Graham Purcell, an orthopedic surgeon, found that applicant had reached MMI status as of January 29, 2024. (Jt. Ex. A, Report of QME Dr. Purcell dated 1/29/24, p. 23.) Dr. Purcell confirmed his finding of MMI of January 29, 2024, in his supplemental report of February 21, 2024. (Jt. Ex. C, Supp. Report of QME Dr. Purcell dated 2/21/24, p. 3.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc); Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]
A medical opinion must be framed in terms of reasonable medical probability, based on adequate examination and history, not speculative, and must set forth reasoning to support conclusions.
Applied to determine whether the medical evidence supporting MMI status was substantial.
From the decision · page 5There is a lack of substantial evidence to support the WCJ's finding that applicant had not reached MMI and was therefore not permanent and stationary. A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. 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 [36 Cal.Comp.Cases 93].)
Cal. Code Regs., tit. 8, § 9811(k)
Permanent and stationary status means the point when the employee has reached maximal medical improvement, condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment.
Applied to determine if applicant had reached MMI.
From the decision · page 5substantially in the next year with or without medical treatment." (Cal. Code Regs., tit. 8, -§ 9811(k).)
What proof carried it
The evidence the panel weighed, by kind.
QME Dr. Purcell's medical reports finding MMI as of January 29, 2024, and confirming in supplemental report.
From the decision · page 2In his Report of January 29, 2024, QME Dr. Graham Purcell, an orthopedic surgeon, found that applicant had reached MMI status as of January 29, 2024. (Jt. Ex. A, Report of QME Dr. Purcell dated 1/29/24, p. 23.) Dr. Purcell confirmed his finding of MMI of January 29, 2024, in his supplemental report of February 21, 2024. (Jt. Ex. C, Supp. Report of QME Dr. Purcell dated 2/21/24, p. 3.)
WCJ did not point to specific evidence or testimony to support finding applicant had not reached MMI.
From the decision · page 6reports of Dr. Kharrazi, Dr. Purcell, Dr. Kropf, Dr. Lebow, and the post-trial briefing of the parties, it is found that Applicant has not yet reached Maximum Medical Improvement." (11/14/24 Opinion, p. 3.) However, the WCJ did not point to any specific evidence or testimony to support this finding. Instead, QME Dr. Purcell found that applicant had reached MMI. (Jt. Ex. A, p. 23; Jt. Ex. C, p. 3.) The medical evidence and applicant's testimony do not provide substantial evidence otherwise. Thus, the finding regarding MMI and temporary disability benefits must be rescinded. As there was a lack of substantial evidence to support the finding regarding MMI and therefore the provision of temporary disability benefits, the attorney's fees based on this finding must be rescinded as well.
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