ADJ7750011 — California WCAB decision

What the panel ordered

Findings of Fact issued by WCJ on March 23, 2020, rescinded; matter returned to WCJ for further proceedings and new decision

Petition for Reconsideration granted; Findings of Fact by WCJ rescinded; matter returned to WCJ for further proceedings and new decision

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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/COERemandedneck · bi-lateral wrists · thoracic spine · lumbar spine · right hip · bi-lateral knees · left ankle

The medical evidence was found insufficient and defective, with the QME Dr. Schwarz's report excluded due to due process concerns and Dr. Vakili's reports lacking substantial evidence on causation and cumulative injury. The Appeals Board rescinded the WCJ's Findings and remanded for further proceedings.

From the decision · page 1Applicant seeks reconsideration of the Findings of Fact (Findings), issued by the workers' compensation administrative law judge (WCJ) on March 23, 2020, wherein the WCJ found that applicant did not sustain injury arising out of and occurring in the course of employment (AOE/COE) and that applicant would take nothing by way of her injury claim.

The facts that decided it

The rules the panel named

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

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

A medical opinion is not substantial evidence if it is based on facts no longer germane, inadequate medical histories or examinations, incorrect legal theories, or surmise, speculation, conjecture, or guess; it must set forth reasoning, not merely conclusions.

Dr. Vakili's report lacked explanation and substantial evidence on causation and cumulative injury, thus not substantial evidence.

From the decision · page 4Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess, and the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, [33 Cal.Comp.Cases 647]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Here, in his first two reports, Dr. Vakili repeatedly referred to the "7/10/2010 incident" as the basis for applicant's injury claim. (e.g. see Def. Exh. C, pp. 5, 87, 96, and 100; Def. Exh. D, pp. 3 § 5, and 13 § 15.) At no point did he address the cumulative injury claim. Notwithstanding the WCJ's recommendation that the parties have applicant examined by an agreed medical examiner (AME), they requested a supplemental report from Dr. Vakili. In his

Labor Code section 5952(d)

Any award, order, or decision of the Appeals Board must be supported by substantial evidence.

The Appeals Board found the medical evidence insufficient and defective, requiring further development of the record.

From the decision · page 4DISCUSSION Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) Section 5315 provides the Appeals Board with 60 days within which to confirm, adopt, modify or set aside the findings, order, decision or award of a workers' compensation administrative law judge. (Lab. Code, § 5315.) On June 5, 2020, the State of California's Governor, Gavin Newsom, issued Executive Order N-68-20, wherein he ordered that the deadlines in sections 5909 and 5315 shall be extended for a period of 60 days.1 Pursuant to Executive Order N-68-20, the time within which the Appeals Board must act was extended by 60 days. Therefore, this decision is timely. It is well established that any 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.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Vakili's reports repeatedly referenced a specific incident date of 7/10/2010 and did not address cumulative injury claim, lacking substantial evidence on causation.

From the decision · page 4Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess, and the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, [33 Cal.Comp.Cases 647]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Here, in his first two reports, Dr. Vakili repeatedly referred to the "7/10/2010 incident" as the basis for applicant's injury claim. (e.g. see Def. Exh. C, pp. 5, 87, 96, and 100; Def. Exh. D, pp. 3 § 5, and 13 § 15.) At no point did he address the cumulative injury claim. Notwithstanding the WCJ's recommendation that the parties have applicant examined by an agreed medical examiner (AME), they requested a supplemental report from Dr. Vakili. In his

Testimony and credibilityfavours Defendant prevailed

Dr. Schwarz was removed as QME for not making himself available for deposition, denying defendant due process rights, thus his report was excluded.

From the decision · page 5In regard to applicant's contention that the report from Dr. Schwarz is substantial evidence, all parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) Dr. Schwarz was removed as the QME because he did not make himself available for defendant to take his deposition. A party's right to examine and/or cross-examine a witness is a fundamental aspect of due process. (Apte v. Regents of University of California (1988) 198 Cal.App.3d 1084, 1098.) Whether Dr. Schwarz' report is or not substantial evidence is irrelevant in light of the fact that a decision based on that report would constitute a denial of defendant's due process rights.

ADJ7750011 · March 15, 2021

What the panel ordered

What was disputed, and how it came out

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