ADJ8051802 — California WCAB decision

What the panel ordered

March 5, 2019 Findings and Order rescinded; new findings substituted denying injury AOE/COE and disallowing liens

Petition for Reconsideration granted to review the March 5, 2019 Findings and Order; decision after reconsideration issued

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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/COEDefendant prevailedlumbar spine · psyche

The medical reports of AME Dr. Sohn, QME Dr. Matloob, and QME Dr. Tsou were found not to constitute substantial medical evidence due to inadequate medical histories, lack of detailed causation analysis, and incomplete record reviews, leading to the conclusion that lien claimants did not meet their burden of proof for injury AOE/COE.

From the decision · page 12For the above reasons, none of the reporting of AME Dr. Sohn, QME Dr. Matloob, or QME Dr. Tsou constitutes substantial medical evidence. Consequently, we find that lien claimants have not met their burden of proving applicant sustained injury arising out of and in the course of employment at Smith's Bakeries. (Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, (WCAB en banc).) Because there is no substantial medical evidence in support of injury AOE/COE, we need not reach the issue of whether compensation is barred by the one year limitations period of section 5405.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

QME Dr. Tsou's report was based on an inadequate medical history and missing records, lacking detailed analysis of job duties.

Favours Defendant prevailed

This lack of adequate medical history and reasoning led to rejection of the opinion as substantial evidence.

From the decision · page 12applicant's treating physician, Dr. Tsou goes on to opine that applicant's injury is "10% due to working at Smiths Bakeries, 90% due to factors outside of Smiths' employment." Again, there is no substantive discussion of the basis for this determination, no detailed analysis of applicant's job duties at Smith's, or their relationship to his claimed injuries. The report is based on an inadequate medical history, and does not constitute substantial medical evidence.

AME Dr. Sohn's February 1, 2011 report revised causation percentages without adequate explanation or detailed job duty analysis.

Favours Defendant prevailed

This lack of detailed reasoning and incomplete medical history led to rejection of the medical opinion as substantial evidence.

From the decision · page 10However, in his report of February 1, 2011, Dr. Sohn significantly revised his assessment of causation, stating that only 40% of applicant's injury was related to his employment at Esparza, and the remaining 60% of the patient's condition attributable to his employment with Smith's Bakeries. (Ex. 6, Report of Roger Sohn, M.D. dated February 1, 2011, at p. 9.) Dr. Sohn provides no substantive description of applicant's job duties while working for Smith's Bakeries, and no explanation for why those job duties would have resulted in injury to applicant. Dr. Sohn does not describe what specific evidence he relied upon in revising his previously stated opinions that injury arose solely from applicant's employment with Esparza. The report offers percentages of causation as between Esparza and Smith's Bakeries, but does not detail how the AME arrived at those percentages. The entirety of the AME's apportionment analysis is contained in a two sentence paragraph, which does not adequately set forth reasoning in support of the AME's conclusions. (Ibid.; Escobedo v. Marshalls, supra, 70 Cal.Comp.Cases 604, 620-621.)

QME Dr. Matloob's report lacked record review and relied solely on applicant's self-reporting, with significant discrepancies in injury history.

Favours Defendant prevailed

This impaired the ability to assess causation and led to rejection of the report as substantial evidence.

From the decision · page 11The reporting of psychology QME Dr. Matloob is similarly unsubstantiated. The sole report from the QME reflects no record review. Thus, the conclusions reached in the QME reporting regarding causation, nature, and extent of the injury are predicated on applicant's self- reporting at the examination. (Ex. 1, Report by Panel QME Afsaneh Matloob, Psy.D., dated March 1, 2012.) The lack of a record review impairs the QME's ability to assess the relationship between the injuries claimed at Esparza and at Smith's Bakeries. The significant discrepancies regarding the reported events of employment giving rise to the alleged psychiatric injury illustrate the necessity of a complete record review. Applicant provided to Dr. Matloob a history of injury arising from his interactions with his supervisor at Smith's. (Id. at p.11.) However, in the nearly contemporaneous medical history given to Dr. Kauss regarding the injury sustained at Esparza, applicant offered no mention of injury at Smith's Bakeries, and no discussion of negative interactions with his supervisor. (Ex.

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.

AMERejected · orthopedic

Initially found injury arose from Esparza employment with 6% WPI; later revised to 60% causation from Smith's Bakeries but without adequate explanation or medical history, rendering the opinion not substantial evidence.

The AME's February 1, 2011 report significantly revised causation percentages without adequate explanation or detailed job duty analysis, lacking substantial medical evidence as per Escobedo standards.

From the decision · page 10However, in his report of February 1, 2011, Dr. Sohn significantly revised his assessment of causation, stating that only 40% of applicant's injury was related to his employment at Esparza, and the remaining 60% of the patient's condition attributable to his employment with Smith's Bakeries. (Ex. 6, Report of Roger Sohn, M.D. dated February 1, 2011, at p. 9.) Dr. Sohn provides no substantive description of applicant's job duties while working for Smith's Bakeries, and no explanation for why those job duties would have resulted in injury to applicant. Dr. Sohn does not describe what specific evidence he relied upon in revising his previously stated opinions that injury arose solely from applicant's employment with Esparza. The report offers percentages of causation as between Esparza and Smith's Bakeries, but does not detail how the AME arrived at those percentages. The entirety of the AME's apportionment analysis is contained in a two sentence paragraph, which does not adequately set forth reasoning in support of the AME's conclusions. (Ibid.; Escobedo v. Marshalls, supra, 70 Cal.Comp.Cases 604, 620-621.)

QMERejected · psychiatry

Diagnosed depressive disorder and sexual dysfunction related solely to Smith's Bakeries employment, but report lacked record review and relied solely on applicant's self-reporting, thus not substantial evidence.

The QME's report lacked record review and had significant discrepancies in applicant's injury history, impairing the ability to assess causation, thus not substantial evidence.

From the decision · page 11The reporting of psychology QME Dr. Matloob is similarly unsubstantiated. The sole report from the QME reflects no record review. Thus, the conclusions reached in the QME reporting regarding causation, nature, and extent of the injury are predicated on applicant's self- reporting at the examination. (Ex. 1, Report by Panel QME Afsaneh Matloob, Psy.D., dated March 1, 2012.) The lack of a record review impairs the QME's ability to assess the relationship between the injuries claimed at Esparza and at Smith's Bakeries. The significant discrepancies regarding the reported events of employment giving rise to the alleged psychiatric injury illustrate the necessity of a complete record review. Applicant provided to Dr. Matloob a history of injury arising from his interactions with his supervisor at Smith's. (Id. at p.11.) However, in the nearly contemporaneous medical history given to Dr. Kauss regarding the injury sustained at Esparza, applicant offered no mention of injury at Smith's Bakeries, and no discussion of negative interactions with his supervisor. (Ex.

QMERejected · orthopedic

Attributed 10% causation to Smith's Bakeries and 90% to non-work factors but based on inadequate medical history and missing records, thus not substantial evidence.

The QME's opinion was based on an inadequate medical history and missing records, lacking detailed analysis of job duties, thus not substantial evidence.

From the decision · page 12applicant's treating physician, Dr. Tsou goes on to opine that applicant's injury is "10% due to working at Smiths Bakeries, 90% due to factors outside of Smiths' employment." Again, there is no substantive discussion of the basis for this determination, no detailed analysis of applicant's job duties at Smith's, or their relationship to his claimed injuries. The report is based on an inadequate medical history, and does not constitute substantial medical evidence.

The rules the panel named

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

Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113 (WCAB en banc)

In an AOE/COE denied case, lien claimant must prove injury AOE/COE as prerequisite to recovery.

Applied to affirm lien claimant's burden of proof for injury AOE/COE.

From the decision · page 9employee and the lien claimant must prove by preponderance of the evidence all of the elements necessary to the establishment of its lien. In Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113, (WCAB en banc), we held that in an AOE/COE denied case, lien claimant has the burden of proving injury arising out of and in the course of employment, as a prerequisite to recovery. (Lab. Code § 3202.5; 5705.)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc)

Substantial medical evidence requires opinions framed in reasonable medical probability, based on adequate examination and history, with reasoning supporting conclusions, including detailed apportionment analysis.

Applied to reject medical opinions lacking adequate history and reasoning.

From the decision · page 9In order for a report to be substantial medical evidence, the opinion "must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) Additionally, a medical report is not substantial evidence where it is "based on facts no longer germane, on inadequate medical histories and examinations." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd.

Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588 (WCAB en banc)

Lien claimants bear the burden of proving injury AOE/COE by preponderance of evidence when litigating entitlement to payment for medical treatment.

Applied to affirm burden of proof on lien claimants.

From the decision · page 8Initially, we observe that it is the lien claimants that carry the burden of proving injury AOE/COE. In Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588, 1592 (WCAB en banc), we held that when a lien claimant litigates the issue of entitlement to payment for industrially related medical treatment, the lien claimant stands in the shoes of the injured

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

inadequate medical history and missing records in QME Dr. Tsou's report

From the decision · page 12applicant's treating physician, Dr. Tsou goes on to opine that applicant's injury is "10% due to working at Smiths Bakeries, 90% due to factors outside of Smiths' employment." Again, there is no substantive discussion of the basis for this determination, no detailed analysis of applicant's job duties at Smith's, or their relationship to his claimed injuries. The report is based on an inadequate medical history, and does not constitute substantial medical evidence.

Medical recordsfavours Defendant prevailed

incomplete medical and vocational history and conclusory apportionment analysis in AME Dr. Sohn's reports

From the decision · page 11significant and unexplained revisions to Dr. Sohn's opinions on causation, coupled with an incomplete medical and vocational history, along with the conclusory apportionment analysis, all render the AME reporting not substantial.

Medical recordsfavours Defendant prevailed

lack of record review and reliance on applicant's self-reporting in QME Dr. Matloob's report

From the decision · page 11The reporting of psychology QME Dr. Matloob is similarly unsubstantiated. The sole report from the QME reflects no record review. Thus, the conclusions reached in the QME reporting regarding causation, nature, and extent of the injury are predicated on applicant's self- reporting at the examination. (Ex. 1, Report by Panel QME Afsaneh Matloob, Psy.D., dated March 1, 2012.) The lack of a record review impairs the QME's ability to assess the relationship between the injuries claimed at Esparza and at Smith's Bakeries. The significant discrepancies regarding the reported events of employment giving rise to the alleged psychiatric injury illustrate the necessity of a complete record review. Applicant provided to Dr. Matloob a history of injury arising from his interactions with his supervisor at Smith's. (Id. at p.11.) However, in the nearly contemporaneous medical history given to Dr. Kauss regarding the injury sustained at Esparza, applicant offered no mention of injury at Smith's Bakeries, and no discussion of negative interactions with his supervisor. (Ex.

ADJ8051802 · April 27, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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