ADJ12546400 — California WCAB decision

What the panel ordered

The Findings, Award and Order issued by the WCJ on October 27, 2020 is rescinded and the matter is returned to the trial level for further proceedings consistent with the opinion.

Defendant sought reconsideration of the Findings, Award and Order issued by the WCJ on October 27, 2020, which found injury AOE/COE to multiple body parts and admitted the QME report as substantial evidence. The WCJ's decision was rescinded and the matter returned to trial level for further proceedings.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.

AOE/COERemandedskin · face · eyes · left ear · headaches · internal injury · psychiatric injury · neurological injury

The WCJ found injury AOE/COE to multiple body parts based on the QME report and applicant's testimony, but the Appeals Board found the medical record insufficient and inconsistent, requiring further development of the record.

From the decision · page 1Defendant seeks reconsideration of the Findings, Award and Order (FA&O) issued by the workers' compensation administrative law judge (WCJ) on October 27, 2020.1 By the FA&O, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his skin, face, eyes, left ear, sustained headaches, internal injury, psychiatric injury and neurological injury. The WCJ also found the report of the qualified medical evaluator (QME) to be admissible and substantial evidence. An award was made per the finding of injury and all other issues were ordered deferred.

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and set forth reasoning in support of conclusions.

The Appeals Board found the QME report was not substantial evidence due to inconsistencies in the history of exposure and insufficient medical record.

From the decision · page 10Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical 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, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Labor Code section 4062.3(g); Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803 (Appeals Board en banc)

Ex parte communication with a QME is prohibited and may be grounds for a new panel if timely raised.

Defendant's objection to ex parte communication was not raised at trial and thus not considered on reconsideration.

From the decision · page 9With respect to the provision by applicant of records to the QME as an improper ex parte communication, the September 17, 2020 Minutes of Hearing do not reflect that defendant objected to Dr. Miller's reporting on this basis at trial. It is acknowledged that ex parte communication with a QME is prohibited and that the aggrieved party may seek a new panel based on an ex parte communication with the QME. (Lab. Code, § 4062.3(g); see also Suon v. California Dairies (2018) 83 Cal.Comp.Cases 1803, 1809 (Appeals Board en banc).) However, "[i]t is improper to seek reconsideration on an issue not presented at the trial level." (Cottrell v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 760, 761 (writ den.).)

ADJ12546400 · April 1, 2021

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