ADJ7984952 · August 8, 2024

The WCJ found that the AME's face-to-face time with the applicant, combined with the history taken by staff, met the regulatory requirements and did not invalidate the AME's report as substantial medical evidence. The WCAB affirmed this finding after reconsideration.

From the decision · page 9The basic allegation in Applicant's Petition is that Applicant's case involved a complex medical-legal evaluation and that the face to face examination time of 20 to 30 minutes with the AME Dr. Gordon, as testified to by the Applicant, is insufficient under the standard specified in Rule 49.2 for neuromusculoskeletal evaluations, with the result that the resulting report is not substantial medical evidence, cannot be the basis of an award, and that the AME should be replaced. The alleged error is my finding that the time spent with the Applicant by the AME was sufficient under the law and regulations, and that accordingly, Dr. Gordon's report is substantial medical evidence, and was the proper basis for the FA&O, and that it was not necessary to replace the AME.

The AME's report was detailed, included a review of 504 pages of medical records, a physical exam, and a thorough history review.

Favours Defendant prevailed

This supported the WCJ's finding that the AME's report was substantial medical evidence despite the face-to-face time dispute.

From the decision · page 10It is evident from the Applicant's testimony that at a minimum, Dr. Gordon's staff provided him with a long questionnaire to complete upon arrival at the office, which he did, and that his staff took a detailed history from the Applicant, which by the Applicant's own trial testimony lasted approximately 30 minutes. The declaration from the AME in his report was that he "went over the details of that history" with the Applicant and performed a physical exam of the Applicant. (Joint 101 at p. 1.) His report summarizes a detailed history from the Applicant (Id. at p. 3-4), summarizes 504 pages of medical records at pages 6-12 (Id. at p. 2), documents the physical exam (Id. at pp. 5-6), and provides his assessment and opinions which include diagnosis, P&S status, impairment, apportionment, and future medical treatment. (Id. at pp. 13- 17.) In short, I found Dr.

Applicant's testimony indicated face-to-face time with the AME was about 20 to 30 minutes, with 30 minutes history taken by staff.

Favours Defendant prevailed

The WCJ inferred that the total time including staff history and AME face-to-face time met regulatory requirements.

From the decision · page 9I agree with the Petition that the only direct evidence in the record as to the specific amount of face to face time between the Applicant and Dr. Gordon comes from the Applicant's trial testimony. Unfortunately, the time declaration in Dr. Gordon's report combines the time of the interview conducted by his staff with the face to face time he personally spent with the Applicant, i.e., a total of 1 hour, and does not specify or break out the specific amount of face to face time. It is clear from Rule 49(b) that face to face time for purposes of these rules only includes time spent with the actual evaluator; "Face to face time means only that time the evaluator is present with an injured worker. To the extent that the Applicant testified that he spent about 30 minutes with Dr. Gordon's nurses providing a history (Opinion at 6, MOH/SOE at p. 6), if you take the AME's sworn declaration of one hour total time spent with the Applicant, the inference is that Dr. Gordon's actual face to face time was closer to the high end of the 30 minutes referenced in the range offered by the Applicant in his testimony, rather than the lower 20 minute end of his estimate.

Found applicant to be permanent and stationary; provided impairment ratings for left carpal tunnel syndrome, left cubital tunnel syndrome, and right middle finger; found no apportionment to non-industrial factors; noted some exaggeration of symptoms; provided work restrictions and future medical treatment recommendations.

The WCJ relied on Dr. Gordon's detailed report and found it substantial medical evidence despite the face-to-face time dispute.

From the decision · page 6In his report of October 19, 2020, Dr. Gordon also found the Applicant to be P&S and provided impairment ratings of 3 WPI for left sided carpal tunnel syndrome, 3 WPI for left sided cubital tunnel syndrome, and provided an Almaraz/Guzman3 rating by analogy of 6 WPI, for a total of 12 WPI for the left upper extremity, and 2 WPI for the right middle finger. A summary of the relevant facts follows; which is an abridged version of the facts outlined in the Opinion on Decision (Opinion) at pages 4-7. Applicant sustained an accepted cumulative injury from April 12, 1999 through January 18, 2007, to his left elbow, bilateral wrists in the form of carpal tunnel syndrome and to his right middle finger as a result of his employment as an auto assembler at NUMMI. (Id. at p. 3, Minutes of Hearing and Summary of Evidence (MOH/SOE) dated 5/17/21 at p. 2.) The parties utilized orthopedist and upper extremity specialist, Leonard Gordon, M.D., as the AME. He issued one 17-page report dated October 19, 2020, plus attachments, based on an exam of the same date, which found the Applicant to be P&S, and provided opinions on impairment, apportionment, and future medical treatment. (Joint 101.)

Rule 49.2 of the California Workers' Compensation Rules of Court regarding face-to-face time requirements for medical-legal evaluations

The WCJ applied Rule 49.2 to assess whether the AME's face-to-face time with the applicant was sufficient to constitute substantial medical evidence.

From the decision · page 9I agree with the Petition that the only direct evidence in the record as to the specific amount of face to face time between the Applicant and Dr. Gordon comes from the Applicant's trial testimony. Unfortunately, the time declaration in Dr. Gordon's report combines the time of the interview conducted by his staff with the face to face time he personally spent with the Applicant, i.e., a total of 1 hour, and does not specify or break out the specific amount of face to face time. It is clear from Rule 49(b) that face to face time for purposes of these rules only includes time spent with the actual evaluator; "Face to face time means only that time the evaluator is present with an injured worker. To the extent that the Applicant testified that he spent about 30 minutes with Dr. Gordon's nurses providing a history (Opinion at 6, MOH/SOE at p. 6), if you take the AME's sworn declaration of one hour total time spent with the Applicant, the inference is that Dr. Gordon's actual face to face time was closer to the high end of the 30 minutes referenced in the range offered by the Applicant in his testimony, rather than the lower 20 minute end of his estimate.

California Constitution

Article XIV, section 4 of the California Constitution requiring substantial justice in workers' compensation cases

The WCJ considered the constitutional mandate to accomplish substantial justice expeditiously and without encumbrance in evaluating the sufficiency of the AME's face-to-face time.

From the decision · page 11What is a judge to do given this poor and/or incomplete regulatory scheme with respect to minimum face to face time requirements for most cases, i.e., something other than an uncomplicated evaluation? For big picture guidance, I would look to Section Article XIV, section 4 of the California Constitution, which provides that the Board and its judges shall administer the statutory and regulatory workers' compensation scheme to accomplish "substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character." Under that standard, and reading the rules as a whole and considering the extensive 30 minutes history taken by Dr. Gordon's staff, the fact that the definition of face to face time in Rule 49(b) appears to assume that such a history would be taken by the doctor himself during that face to face time, and the fact it does appear likely that the actual face to face time was an additional 30 minutes when considering the AME report's declaration and the Applicant's testimony together, I do not think that the facts in this case violate the spirit of the rules, render Dr. Gordon's AME opinions non-substantial, invalidate the award, or warrant the replacement of the AME.

Applicant's testimony about face-to-face time with AME and argument during exam

From the decision · page 8The Applicant testified at trial. (MOH/SOE at pp. 4-7.) With respect to the key issue of face-to-face time spent with Dr. Gordon, he testified that on arrival and while waiting, he filled out a multi-page questionnaire, and thereafter he was taken to a room where he spent "about 30 minutes" with two nurses who asked him questions about his medical history and took notes. (Opinion at p. 6, MOH/SOE at p. 6.) He then was taken to another room where he waited for an hour for the doctor to appear. On his arrival, he showed Dr. Gordon how he does his hand stretches and Dr. Gordon told him he did not have carpal tunnel since he did not see any surgical scar "and they kind of argued about this," but the doctor in the end saw the scar and agreed he had undergone carpal tunnel surgery. (Opinion at p. 7, MOH/SOE at pp. 6-7.) The Applicant repeatedly testified that he spent a total of "20 to 30 minutes" face-to face with Dr. Gordon. (Opinion at p. 7, MOH/SOE at p.