ADJ15446830 — California WCAB decision

ADJ15446830 · August 16, 2024

Petition for Reconsideration granted; May 23, 2024 Findings and Order affirmed except amended to defer issue of entitlement to SIBTF benefits; case remanded for further proceedings with instructions to obtain new medical evaluators without conflicts of interest.

Issues decided

Medical opinions weighed

Authorities named

District office

San Jose

What the panel ordered

applicant sought reconsideration of the May 23, 2024 Findings and Order denying his entitlement to SIBTF benefits; the WCAB granted reconsideration, amended findings to defer the issue of entitlement, and returned the matter 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.

Other disputed issueRemandedcervical spine · lumbar spine · bilateral upper extremities · bilateral lower extremities · left shoulder

Conflicts of interest between applicant and medical evaluators Drs. Lee, Betoushana, and Greer rendered their reports unreliable; the proper remedy is to obtain new medical evaluators without conflicts, so the issue of entitlement is deferred for further proceedings.

From the decision · page 2incorporate, except for the discussion on pp. 13-14 about developing the record and not meeting the requirements of Labor Code, section 4751 (from the paragraph that starts with the word "Therefore" on p. 13 to the rest of p. 14), and for the reasons discussed below, we grant reconsideration, amend findings number 6-8 to defer the issue of whether applicant is entitled to SIBTF benefits, and return to the trial level for further proceedings.

The facts that decided it

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

Conflicts of interest between applicant and medical evaluators Drs. Lee, Betoushana, and Greer.

Favours Defendant prevailed

These conflicts rendered the medical reports unreliable and insufficient as substantial evidence for entitlement to SIBTF benefits.

From the decision · page 2We agree with the WCJ that pursuant to Cal. Code of Regs., tit.8, section 41.5, there are conflicts of interest between applicant and Drs. Lee, Betoushana, and Greer. However, the remedy for such conflict, pursuant to Cal. Code of Regs., tit. 8, section 41.6, is to obtain new medical evaluators. We note that the WCJ relied on the report of Mark Zarrabian, D.C., to determine that applicant did not meet the eligibility threshold requirements for SIBTF benefits. We are not making any opinions here as to whether Dr. Zarrabian's medical opinions are substantial evidence. Our opinion here is based on the remedy provided in Cal. Code of Regs., tit. 8, section 41.6.

Applicant's intertwined relationship with Dr. Lee, including office use and access to medical-legal reports.

Favours Defendant prevailed

This relationship raised serious credibility issues and led to rejection of Dr. Lee's reports.

Applicant obtained EMG testing from Dr. Greer without referral and billed private insurance.

Favours Defendant prevailed

This irregularity questioned the reliability of the EMG testing and related medical opinions.

From the decision · page 10Without a referral from his primary treating physician, Dr. Lee, nor from QME Dr. Zarrabian, applicant asked Dr. Greer, his friend of over 20 years, to conduct EMG testing and bill his private insurance company, even though he had an accepted workers' compensation claim. Dr. Greer testified applicant "mentioned to me that there was, in some way, the symptoms were related to his work. But, he did not give me a case number or any workers' comp insurance or an attorney or any case manager or adjuster. He told me he had a primary doctor handling all of this, so I left it at that." (Exhibit M, p. 13: 6-14) Dr. Greer testified he does not see patients and only conducts EMG testing when he trains other doctors, however, he conducted the testing for applicant. Further, although he was aware applicant had a workers' compensation claim, he billed applicant's private insurance. Dr. Greer also testified he has used applicant's office address in his articles of incorporation for Vital Health and as a marketing strategy, which he considered to be of value. Dr.

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.

PTPRejected

Dr. Lee's medical-legal reports were found unreliable due to conflicts of interest and applicant's intertwined relationship with him, including office use and access to reports.

Conflicts of interest and intertwined relationship with applicant rendered Dr. Lee's reports unreliable.

From the decision · page 1applicant seeks reconsideration of the May 23, 2024 Findings and Order, wherein the workers' compensation administrative law judge (WCJ) found, in pertinent part, that applicant has not met his burden of proving his entitlement to Subsequent Injuries Benefits Trust Fund (SIBTF) benefits because the medical reports of Donald Lee, D.O., Demeil Betoushana, D.C., and Benjamin Greer, M.D., are not substantial evidence and cannot be relied upon as evidence due to conflicts of interest between these medical providers and applicant.

QMERejected

Dr. Betoushana's report was disqualified due to undisclosed conflict of interest as applicant was his primary treating physician shortly before evaluation.

Undisclosed conflict of interest due to prior doctor-patient relationship with applicant.

otherRejected

Dr. Greer's EMG testing was not relied upon due to conflict of interest and billing under applicant's private insurance without referral from treating or QME physicians.

Conflict of interest and billing irregularities rendered Dr. Greer's testing unreliable.

From the decision · page 10Without a referral from his primary treating physician, Dr. Lee, nor from QME Dr. Zarrabian, applicant asked Dr. Greer, his friend of over 20 years, to conduct EMG testing and bill his private insurance company, even though he had an accepted workers' compensation claim. Dr. Greer testified applicant "mentioned to me that there was, in some way, the symptoms were related to his work. But, he did not give me a case number or any workers' comp insurance or an attorney or any case manager or adjuster. He told me he had a primary doctor handling all of this, so I left it at that." (Exhibit M, p. 13: 6-14) Dr. Greer testified he does not see patients and only conducts EMG testing when he trains other doctors, however, he conducted the testing for applicant. Further, although he was aware applicant had a workers' compensation claim, he billed applicant's private insurance. Dr. Greer also testified he has used applicant's office address in his articles of incorporation for Vital Health and as a marketing strategy, which he considered to be of value. Dr.

The rules the panel named

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

Cal. Code Regs., tit. 8, § 41.5

Cal. Code Regs., tit. 8, § 41.5 - Conflict of interest disclosure requirements for medical evaluators.

The Board found conflicts of interest between applicant and medical evaluators Drs. Lee, Betoushana, and Greer, rendering their reports unreliable.

From the decision · page 2We agree with the WCJ that pursuant to Cal. Code of Regs., tit.8, section 41.5, there are conflicts of interest between applicant and Drs. Lee, Betoushana, and Greer. However, the remedy for such conflict, pursuant to Cal. Code of Regs., tit. 8, section 41.6, is to obtain new medical evaluators. We note that the WCJ relied on the report of Mark Zarrabian, D.C., to determine that applicant did not meet the eligibility threshold requirements for SIBTF benefits. We are not making any opinions here as to whether Dr. Zarrabian's medical opinions are substantial evidence. Our opinion here is based on the remedy provided in Cal. Code of Regs., tit. 8, section 41.6.

Cal. Code Regs., tit. 8, § 41.6

Cal. Code Regs., tit. 8, § 41.6 - Remedy for conflicts of interest by obtaining new medical evaluators.

The Board ordered the parties to obtain new medical evaluators without conflicts of interest as the remedy for the conflicts found.

From the decision · page 2We agree with the WCJ that pursuant to Cal. Code of Regs., tit.8, section 41.5, there are conflicts of interest between applicant and Drs. Lee, Betoushana, and Greer. However, the remedy for such conflict, pursuant to Cal. Code of Regs., tit. 8, section 41.6, is to obtain new medical evaluators. We note that the WCJ relied on the report of Mark Zarrabian, D.C., to determine that applicant did not meet the eligibility threshold requirements for SIBTF benefits. We are not making any opinions here as to whether Dr. Zarrabian's medical opinions are substantial evidence. Our opinion here is based on the remedy provided in Cal. Code of Regs., tit. 8, section 41.6.

Lab. Code § 4751

Lab. Code § 4751 - Threshold for entitlement to SIBTF benefits requiring 35% or more permanent disability.

The Board noted the threshold requirement for SIBTF benefits and that the issue is deferred pending new evaluations.

From the decision · page 14Pursuant to section 4751, the permanent disability resulting from the subsequent industrial injury, when considered alone and without regard to or adjustment for the occupation or age of the employee, must be 35% or more. Here, applicant settled his underlying workers' compensation claim by Stipulations with Request for Award of 65% permanent disability, based on the reporting of applicant's predesignated primary treating physician, Donald Lee, D.O. Defendant SIBTF has objected to Dr. Lee's reporting and correctly asserts it is not bound by the findings and award against the employer in the underlying case and may litigate the question of whether the employer's liability should be more than what was found against it or settled with it in order to reduce its liability. As discussed above, there are various conflicts of interest rendering Dr. Lee's medical-legal reporting unreliable.

ADJ15446830 · August 16, 2024

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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