ADJ15858070 — California WCAB decision

What the panel ordered

The Petition for Reconsideration was granted, the January 29, 2024 Findings and Award were rescinded, and the matter was returned to the WCJ for further proceedings.

Applicant sought reconsideration of the Findings and Award issued by the WCJ on January 29, 2024, which found a 12% permanent disability rating based on Dr. Kulick's report. The WCAB granted reconsideration and rescinded the Findings and Award, returning the matter to the WCJ for further proceedings.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.

Medical treatment / UR / IMRRemanded

The WCAB encouraged defendant to authorize EMG testing and nerve conduction studies to address applicant's legitimate concern about medical treatment approval, indicating further medical treatment was needed.

From the decision · page 8We note that applicant raises a legitimate concern about getting an EMG approved by utilization review based on the current record, and that the WCJ agreed in her Report that it may be helpful. To expedite this process, we strongly encourage defendant to authorize EMG testing, as well as sensory and motor nerve conduction studies.

Permanent disability rating

The facts that decided it

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

Dr. Shadday's reports were conclusory and lacked a solid underlying basis.

Favours Applicant prevailed

This undermined the substantiality of Dr. Kulick's opinion which relied on Dr. Shadday's report.

From the decision · page 7It appears that Dr. Shadday's report contains a minimal history and, although he performed a physical examination, the brevity of the summary makes it difficult to evaluate the adequacy of either the history or the examination. Ultimately, however, Dr. Shadday's reports are conclusory and he does not provide a solid underlying basis for his opinions. Thus, Dr. Shadday's reports are not substantial medical evidence.

Dr. Kulick did not disclose a solid underlying basis for his impairment rating and relied on Dr. Shadday's report.

Favours Applicant prevailed

This made Dr. Kulick's opinion not substantial evidence.

From the decision · page 7Dr. Kulick evaluated applicant, diagnosed with bilateral carpal tunnel syndrome, and agreed with Dr. Shadday that applicant's condition is permanent and stationary as of October 20, 2022. Regarding the AMA Guidelines, Dr. Kulick feels that a "6% whole-person impairment via page 495, Table 16-3, would be appropriate as described by his treating physician." (Ex G., p. 12, emphasis added.) Dr. Kulick did not review Dr. Jamasbi's reports, thus the basis of Dr. Kulick's opinion about the appropriateness of a 6% whole-person impairment is based on Dr. Shadday's report. Because Dr. Kulick does not disclose a solid underlying basis for his impairment rating, and to the extent that he bases his opinion on Dr. Shadday's reporting, his opinions are not substantial medical evidence.

Dr. Jamasbi did not adequately explain why his departure from the AMA Guides was necessary or how his whole-person impairment rating was derived.

Favours Applicant prevailed

This made Dr. Jamasbi's rating not substantial evidence, requiring further development of the record.

From the decision · page 7Dr. Jamasbi performed physical and neurological examinations of applicant and took a detailed history. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 13-16.) He reviewed the extensive medical record, including the results of various diagnostics, x-rays of applicant's right wrist and left wrist, both taken April 17, 2023, and provided an organized overview of his record review. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 1-13.) However, to the extent that Dr. Jamasbi not explain why his departure from the strict application of the AMA Guides is necessary and he did not adequately explain how his whole-person impairment rating was derived, his rating is not substantial medical evidence.

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

Assigned a 19% whole person impairment rating for bilateral upper extremities based on pain and numbness, but did not adequately explain departure from AMA Guides.

Report lacked adequate explanation for departure from AMA Guides and how the rating was derived, thus not substantial evidence.

From the decision · page 7Dr. Jamasbi performed physical and neurological examinations of applicant and took a detailed history. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 13-16.) He reviewed the extensive medical record, including the results of various diagnostics, x-rays of applicant's right wrist and left wrist, both taken April 17, 2023, and provided an organized overview of his record review. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 1-13.) However, to the extent that Dr. Jamasbi not explain why his departure from the strict application of the AMA Guides is necessary and he did not adequately explain how his whole-person impairment rating was derived, his rating is not substantial medical evidence.

QMERejected

Agreed with a 6% whole person impairment rating based on Dr. Shadday's report but did not disclose a solid underlying basis, thus not substantial evidence.

Opinion based on Dr. Shadday's report which was conclusory and lacked solid basis, thus not substantial evidence.

From the decision · page 7Dr. Kulick evaluated applicant, diagnosed with bilateral carpal tunnel syndrome, and agreed with Dr. Shadday that applicant's condition is permanent and stationary as of October 20, 2022. Regarding the AMA Guidelines, Dr. Kulick feels that a "6% whole-person impairment via page 495, Table 16-3, would be appropriate as described by his treating physician." (Ex G., p. 12, emphasis added.) Dr. Kulick did not review Dr. Jamasbi's reports, thus the basis of Dr. Kulick's opinion about the appropriateness of a 6% whole-person impairment is based on Dr. Shadday's report. Because Dr. Kulick does not disclose a solid underlying basis for his impairment rating, and to the extent that he bases his opinion on Dr. Shadday's reporting, his opinions are not substantial medical evidence.

PTPRejected

Diagnosed bilateral carpal tunnel syndrome and assigned 6% whole person impairment but reports were conclusory and lacked solid underlying basis, thus not substantial evidence.

Reports were conclusory and lacked solid underlying basis, thus not substantial evidence.

From the decision · page 7It appears that Dr. Shadday's report contains a minimal history and, although he performed a physical examination, the brevity of the summary makes it difficult to evaluate the adequacy of either the history or the examination. Ultimately, however, Dr. Shadday's reports are conclusory and he does not provide a solid underlying basis for his opinions. Thus, Dr. Shadday's reports are not substantial medical evidence.

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 (Appeals Bd. en banc)

Medical opinion must be well-reasoned, based on adequate history and examination, and disclose a solid underlying basis to be substantial evidence.

Applied to evaluate the medical reports of Drs. Shadday, Kulick, and Jamasbi.

From the decision · page 5DISCUSSION As a preliminary matter, to be substantial evidence, a medical opinion must be well- reasoned, based on an adequate history and examination, and it must disclose a solid underlying basis for the opinion. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc); see also E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687].) Conversely, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798.) A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, and not merely their conclusions. (Hegglin, supra; Granado v. Workmen's Comp. Appeals Bd.

Almaraz-Guzman III (2010) 187 Cal.App.4th 808

AMA Guides to the Evaluation of Permanent Impairment must be used with clinical judgment and may be departed from with explanation.

Applied to assess the validity of impairment ratings and the need for explanation when departing from strict AMA Guides application.

From the decision · page 5(1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; Escobedo, supra.) The chief value of an expert's opinion rests upon the material from which their opinion is fashioned and the reasoning by which they progress from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based. (Escobedo, supra, at 621; People v. Bassett (1968) 69 Cal.2d 122, 141, 144.) It is well-established that the Appeals Board may rely upon the relevant and considered opinion of one physician, though inconsistent with other medical opinions, so long as the reporting is based on substantial evidence. (Smith v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 588, 592 [34 Cal.Comp.Cases 424], see also Place, supra, at 378-379.) The scheduled rating is prima facie evidence of an employee's permanent disability. However, the scheduled rating is rebuttable. (See Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman III) (2010) 187 Cal.App.4th 808, 852-853 [75 Cal.Comp.Cases

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has authority to develop the record when medical evidence is not substantial or to provide due process.

Applied to justify returning the matter to the WCJ for further proceedings.

From the decision · page 7The Appeals Board has the authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Shadday's reports were conclusory and lacked solid underlying basis

From the decision · page 7It appears that Dr. Shadday's report contains a minimal history and, although he performed a physical examination, the brevity of the summary makes it difficult to evaluate the adequacy of either the history or the examination. Ultimately, however, Dr. Shadday's reports are conclusory and he does not provide a solid underlying basis for his opinions. Thus, Dr. Shadday's reports are not substantial medical evidence.

Medical recordsfavours Defendant prevailed

Dr. Kulick's opinion was based on Dr. Shadday's report and lacked solid underlying basis

From the decision · page 7Dr. Kulick evaluated applicant, diagnosed with bilateral carpal tunnel syndrome, and agreed with Dr. Shadday that applicant's condition is permanent and stationary as of October 20, 2022. Regarding the AMA Guidelines, Dr. Kulick feels that a "6% whole-person impairment via page 495, Table 16-3, would be appropriate as described by his treating physician." (Ex G., p. 12, emphasis added.) Dr. Kulick did not review Dr. Jamasbi's reports, thus the basis of Dr. Kulick's opinion about the appropriateness of a 6% whole-person impairment is based on Dr. Shadday's report. Because Dr. Kulick does not disclose a solid underlying basis for his impairment rating, and to the extent that he bases his opinion on Dr. Shadday's reporting, his opinions are not substantial medical evidence.

Medical recordsfavours Defendant prevailed

Dr. Jamasbi did not adequately explain departure from AMA Guides or how rating was derived

From the decision · page 7Dr. Jamasbi performed physical and neurological examinations of applicant and took a detailed history. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 13-16.) He reviewed the extensive medical record, including the results of various diagnostics, x-rays of applicant's right wrist and left wrist, both taken April 17, 2023, and provided an organized overview of his record review. (Dr. Jamasbi's report of October 4, 2023, Ex. 1, pp. 1-13.) However, to the extent that Dr. Jamasbi not explain why his departure from the strict application of the AMA Guides is necessary and he did not adequately explain how his whole-person impairment rating was derived, his rating is not substantial medical evidence.

ADJ15858070 · April 8, 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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