What the panel ordered
The Appeals Board granted the Petition for Reconsideration, rescinded the Findings of Facts and Orders issued by the WCJ on November 12, 2021, and returned the matter to the trial level for further proceedings consistent with the opinion.
Applicant sought removal of the Findings of Facts and Orders issued by the WCJ on November 12, 2021, challenging the finding that the QME report was not substantial evidence and the order to develop the record with another physician. The WCJ had recommended denial of the removal petition. The Appeals Board granted reconsideration, rescinded the F&O, and returned the matter to the trial level for further proceedings.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 Appeals Board found that the WCJ erred in finding the QME report was not substantial evidence and that returning to the QME for further development would be fruitless. The Board ordered the matter returned to the trial level for further development of the record, initially with the existing QME, then potentially an AME or regular physician if needed.
From the decision · page 1Applicant seeks removal of the Findings of Facts and Orders (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 12, 2021. By the F&O, the WCJ found that the reporting of the qualified medical evaluator (QME) did not constitute substantial evidence and returning to the QME for development of the record would be "fruitless." Submission of the matter was vacated and the parties were ordered to advise the WCJ if they could agree to an agreed medical evaluator (AME) to replace the QME. If the parties could not agree to an AME, the WCJ was to appoint a regular physician per Labor Code1 section 5701. (Lab. Code, § 5701.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Ryan's QME report provided substantial evidence on injury AOE/COE for multiple body parts, supporting the applicant's claim of cumulative trauma injury on 7/10/2018.
Favours Applicant prevailed
This supported granting reconsideration and returning the matter for further development rather than denying removal.
From the decision · page 2Manijeh Ryan, M.D. evaluated applicant on June 30, 2020 as the pain medicine QME. (Applicant's Exhibit No. 1, QME Report by Manijeh Ryan, M.D., June 30, 2020.) Dr. Ryan opined as follows in the report's causation section:
Dr. Ryan's apportionment and work preclusion opinions were conclusory, lacking explanation, and inconsistent with applicant's activities such as running a dog kennel business and traveling to dog shows.
Favours Defendant prevailed
This justified further development of the record rather than reliance on the existing QME report alone.
From the decision · page 5Lastly, Dr. Ryan's reporting lacks a probative force on the issues. Specifically, Dr. Ryan's work preclusion analysis is simply inconsistent with the facts of the case.... At trial, on cross-examination, applicant discussed his current employment. (MOH/SOE pp. 6-7.) The applicant is a co-owner in a dog kennel business and he breeds dogs for sale. For applicant, this is a "hobby" job. For these pursuits, in August 2021, the applicant traveled about 200 miles out of state to a dog competition or show.
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.
Dr. Ryan opined that the applicant's need for treatment, temporary disability, current symptoms, and permanent disability for multiple body parts arise out of the cumulative work injury of 7/10/2018. She provided whole person impairment ratings and apportioned disability percentages for cervical and lumbar spine, attributing most disability to the cumulative trauma injury. She also opined the applicant is disabled from gainful employment.
Dr. Ryan's causation opinions were found to be substantial evidence for injury AOE/COE, but her apportionment and work preclusion opinions were found conclusory and lacking explanation.
From the decision · page 2Manijeh Ryan, M.D. evaluated applicant on June 30, 2020 as the pain medicine QME. (Applicant's Exhibit No. 1, QME Report by Manijeh Ryan, M.D., June 30, 2020.) Dr. Ryan opined as follows in the report's causation section:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291
The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence; work need only be a contributing cause. Medical opinion must be based on reasonable medical probability, pertinent facts, adequate examination and history, and set forth reasoning to constitute substantial evidence.
The Board found Dr. Ryan's causation opinions met the standard for substantial evidence on injury AOE/COE, but her apportionment opinions did not.
From the decision · page 7The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) It is sufficient to show that work was a contributing cause of the injury. (See Clark, supra, 61 Cal.4th at p. 298; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) The burden of proof "manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].)
McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138
The Appeals Board has discretionary authority under Labor Code section 5701 to develop the record when the medical record is not substantial evidence or when necessary to adjudicate issues in dispute. The preferred procedure is to allow supplementation by existing physicians before appointing new physicians or AMEs.
The Board ordered the matter returned to the trial level for further development initially with the existing QME, then potentially an AME or regular physician if needed.
From the decision · page 9The Appeals Board has the discretionary authority under section 5701 to develop the record when the medical record is not substantial evidence or when necessary to adjudicate the issues in dispute. (See Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Per McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138, 142 (Appeals Board en banc), the preferred procedure for developing a deficient record is to first allow supplementation of the medical record by the physicians who have already reported in the case. In McDuffie, the WCJ had found the reporting of the existing physicians was inadequate and appointed a new physician to evaluate applicant. The en banc panel stated in response:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about his work activities and dog kennel business, including travel to a dog competition, contradicted Dr. Ryan's opinion that applicant is disabled from gainful employment.
From the decision · page 5Lastly, Dr. Ryan's reporting lacks a probative force on the issues. Specifically, Dr. Ryan's work preclusion analysis is simply inconsistent with the facts of the case.... At trial, on cross-examination, applicant discussed his current employment. (MOH/SOE pp. 6-7.) The applicant is a co-owner in a dog kennel business and he breeds dogs for sale. For applicant, this is a "hobby" job. For these pursuits, in August 2021, the applicant traveled about 200 miles out of state to a dog competition or show.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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