ADJ11016330 — California WCAB decision

What the panel ordered

Findings of Fact affirmed except psychiatric injury issue deferred; matter returned to WCJ for further proceedings

Petition for Reconsideration granted to further study factual and legal issues; decision after reconsideration issued affirming WCJ Findings except deferring psychiatric injury issue and returning matter to WCJ for further proceedings

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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.

Psyche AOE/COEDefendant prevailedbody system (cancer)

Dr. Hyman's medical opinions, based on scientific literature and medical records, constitute substantial evidence that the applicant's rare skin cancer is not industrially related; applicant failed to present contrary medical evidence.

From the decision · page 12Dr. Hyman based his medical opinion and determination that the applicant's rare skin cancer was non-industrial, based upon his best medical opinion, upon the scientific literature, principles of causation, his understanding, the research mechanisms, evaluation of the literature, and his evaluation and review of medical records as previously indicted, based on reasonable medical probabilities. Defendant's Exhibit E, Deposition Transcript of Mark H. Hyman, MD, PQME, dated 02/08/2019, page 11, lines 21-25, EAMS DOC. ID NO.: 72434370.

The facts that decided it

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

Dr. Hyman's medical opinion based on scientific literature and medical records that applicant's rare skin cancer is not industrially related

Favours Defendant prevailed

Constitutes substantial evidence supporting denial of industrial causation for cancer claim; applicant failed to present contrary evidence

From the decision · page 12Dr. Hyman based his medical opinion and determination that the applicant's rare skin cancer was non-industrial, based upon his best medical opinion, upon the scientific literature, principles of causation, his understanding, the research mechanisms, evaluation of the literature, and his evaluation and review of medical records as previously indicted, based on reasonable medical probabilities. Defendant's Exhibit E, Deposition Transcript of Mark H. Hyman, MD, PQME, dated 02/08/2019, page 11, lines 21-25, EAMS DOC. ID NO.: 72434370.

Lack of substantial evidence from Dr. Nogales' report and no evidence she was treating physician

Favours Applicant prevailed

Supports deferral of psychiatric injury issue for further proceedings to develop record with appropriate psychiatric evaluation

From the decision · page 5Therefore, we agree with the WCJ that the report from Dr. Nogales is not substantial evidence regarding applicant's psychiatric injury claim. However, the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases" and "may not leave matters undeveloped where it is clear that additional discovery is needed." (Kuykendall v. Workers' Comp. Appeals Bd.

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.

QMERelied upon · Internal Medicine

Concluded with reasonable medical probability that applicant's rare skin cancer (eccrine porocarcinoma) is not industrially related based on scientific literature, principles of causation, medical records, and his expertise.

Dr. Hyman's medical opinions constitute substantial evidence that the cancer is not industrially related; applicant failed to present contrary evidence.

From the decision · page 12Dr. Hyman based his medical opinion and determination that the applicant's rare skin cancer was non-industrial, based upon his best medical opinion, upon the scientific literature, principles of causation, his understanding, the research mechanisms, evaluation of the literature, and his evaluation and review of medical records as previously indicted, based on reasonable medical probabilities. Defendant's Exhibit E, Deposition Transcript of Mark H. Hyman, MD, PQME, dated 02/08/2019, page 11, lines 21-25, EAMS DOC. ID NO.: 72434370.

otherRejected · Psychology

Provided a report claiming applicant sustained psychiatric injury due to job-related physical injury, but did not provide substantial evidence or treatment history; report not substantial evidence for psychiatric injury claim.

Report from Dr. Nogales is not substantial evidence; no evidence she was treating physician; psychiatric injury issue deferred for further proceedings.

From the decision · page 5Therefore, we agree with the WCJ that the report from Dr. Nogales is not substantial evidence regarding applicant's psychiatric injury claim. However, the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases" and "may not leave matters undeveloped where it is clear that additional discovery is needed." (Kuykendall v. Workers' Comp. Appeals Bd.

The rules the panel named

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

Lab. Code, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Substantial evidence must support any award, order, or decision of the Appeals Board.

Dr. Hyman's report based on adequate history, examination, and reasoning constitutes substantial evidence; Dr. Nogales' report does not.

From the decision · page 3It 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. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) When a physician's report is based on an adequate history and examination, is not speculative, and sets forth the reasoning behind the physician's opinion, not merely his or her conclusions, the report constitutes substantial evidence. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

Lab. Code 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396

Appeals Board has discretionary authority to develop the record when substantial evidence is lacking on a threshold issue.

Record lacks substantial evidence on psychiatric injury; Appeals Board defers issue for further proceedings with psychiatry/psychology QME or AME evaluation.

From the decision · page 5Therefore, we agree with the WCJ that the report from Dr. Nogales is not substantial evidence regarding applicant's psychiatric injury claim. However, the Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases" and "may not leave matters undeveloped where it is clear that additional discovery is needed." (Kuykendall v. Workers' Comp. Appeals Bd.

ADJ11016330 · March 14, 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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