What the panel ordered
The April 12, 2019 Findings and Award is rescinded and substituted with new Findings of Fact including a date of injury of March 20, 2014, permanent and stationary date of March 20, 2014, and deferral of permanent disability, apportionment, attorney fees, and other issues.
Decision After Reconsideration following a Notice of Intention to amend prior decisions and Findings and Award dated April 12, 2019, with issues deferred 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 Board found the date of injury to be March 20, 2014, and that the impairment must be assessed under the AMA Guides, 5th Edition, and rated pursuant to the 2005 PDRS based on that date.
From the decision · page 261. The date of injury pursuant to Labor Code section 5412 was March 20, 2014. 2. Based on the date of injury under section 5412, section 4660.1 requires that
The Board found that the permanent and stationary date was March 20, 2014, based on medical opinion that the retroactive 1986 date was speculative and the 2014 evaluation was the first reasonable medical probability date.
From the decision · page 15Following our review of the record, and in the absence of contemporaneous medical records, we believe the retroactive assessment in 2014 that applicant reached a permanent and stationary status in 1986 is inherently speculative. 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, supra, 70 Cal.Comp.Cases 604, 621.) However, after reviewing the criteria for a Permanent and Stationary determination, Dr. Einbund opined that there was "no question," that applicant was permanent and stationary as of his evaluation date on March 20, 2014. (Ex. 2, Transcript of the Deposition of Michael Einbund, M.D., at 21:22.) Accordingly, we are persuaded that March 20, 2014 is the first date in the record that identifies applicant's permanent and stationary status to a reasonable degree of medical probability.
The Board deferred the issues of permanent disability, apportionment, attorney fees, COLA adjustment, and other issues for further proceedings.
From the decision · page 23In summary, we have previously provided notice of intention to affirm our June 12, 2018 Opinion and Order Granting Petitions for Reconsideration and Decision after Reconsideration except to amend the March 20, 2018 Findings and Award, to find that the issue of applicant's Permanent and Stationary date is deferred (Finding of Fact No. 5); that the issues of permanent disability, apportionment, and attorney's fees are deferred (Findings of Fact Nos. 6, 7, 15); and that the issue of the applicable rating schedule is deferred (Finding of Fact No. 10). We have further provided notice of our intention to rescind the WCJ's April 12, 2019 Findings and Award, and substitute a new Findings and Award reflecting that applicant's date of injury was March 20, 2014 (Findings of Fact No. 1); that applicant's disability must be rated using the AMA Guides, pursuant to section 4660.1 (Finding of Fact No. 2); that applicant's Permanent and Stationary date is March 20, 2014 (Finding of Fact No. 5); and that the issues of permanent disability, COLA adjustment, and attorney fees are deferred (Findings of Fact Nos. 6 & 7). We continue to exercise our original jurisdiction because there has been no prior final award of compensation. We further conclude that
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The retroactive permanent and stationary date of 1986 was speculative and unsupported by contemporaneous medical records.
Favours Applicant prevailed
This led the Board to reject Dr. Nudleman's opinion and find the 2014 date as the first reasonable medical probability date for permanent and stationary status.
From the decision · page 13The inherent difficulties in reaching competent medical conclusions with respect to applicant's medical status more than 25 years after his last football game are evident in the medical-legal reporting herein. Dr. Nudleman's initial report concludes that "[n]eurologically, [applicant] is permanent and stationary, and he became permanent and stationary one year after completing his professional football career." (Ex. 8, Report of Kenneth Nudleman, M.D., dated March 19, 2014, at p. 3.) However, the report fails to disclose any reasoning behind this conclusion. The report does not reflect a review of contemporaneous medical records from 1985 or 1986, and we find the retroactive assessment of a permanent and stationary status more than 30 years prior to be inherently speculative and otherwise unsupported in the record.
Dr. Einbund's medical opinion established March 20, 2014 as the permanent and stationary date to a reasonable degree of medical probability.
Favours Applicant prevailed
The Board relied on this opinion to set the permanent and stationary date and defer other issues.
From the decision · page 15Following our review of the record, and in the absence of contemporaneous medical records, we believe the retroactive assessment in 2014 that applicant reached a permanent and stationary status in 1986 is inherently speculative. 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, supra, 70 Cal.Comp.Cases 604, 621.) However, after reviewing the criteria for a Permanent and Stationary determination, Dr. Einbund opined that there was "no question," that applicant was permanent and stationary as of his evaluation date on March 20, 2014. (Ex. 2, Transcript of the Deposition of Michael Einbund, M.D., at 21:22.) Accordingly, we are persuaded that March 20, 2014 is the first date in the record that identifies applicant's permanent and stationary status to a reasonable degree of medical probability.
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. Nudleman opined applicant was permanent and stationary one year after ending professional football career, but his opinion was speculative and unsupported by contemporaneous records.
The report did not disclose reasoning and was speculative due to lack of contemporaneous medical records from 1985 or 1986.
From the decision · page 13The inherent difficulties in reaching competent medical conclusions with respect to applicant's medical status more than 25 years after his last football game are evident in the medical-legal reporting herein. Dr. Nudleman's initial report concludes that "[n]eurologically, [applicant] is permanent and stationary, and he became permanent and stationary one year after completing his professional football career." (Ex. 8, Report of Kenneth Nudleman, M.D., dated March 19, 2014, at p. 3.) However, the report fails to disclose any reasoning behind this conclusion. The report does not reflect a review of contemporaneous medical records from 1985 or 1986, and we find the retroactive assessment of a permanent and stationary status more than 30 years prior to be inherently speculative and otherwise unsupported in the record.
Dr. Einbund opined applicant was permanent and stationary as of March 20, 2014, to a reasonable degree of medical probability.
Dr. Einbund's opinion was relied upon as it was based on reasonable medical probability and supported the 2014 permanent and stationary date.
From the decision · page 15Following our review of the record, and in the absence of contemporaneous medical records, we believe the retroactive assessment in 2014 that applicant reached a permanent and stationary status in 1986 is inherently speculative. 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, supra, 70 Cal.Comp.Cases 604, 621.) However, after reviewing the criteria for a Permanent and Stationary determination, Dr. Einbund opined that there was "no question," that applicant was permanent and stationary as of his evaluation date on March 20, 2014. (Ex. 2, Transcript of the Deposition of Michael Einbund, M.D., at 21:22.) Accordingly, we are persuaded that March 20, 2014 is the first date in the record that identifies applicant's permanent and stationary status to a reasonable degree of medical probability.
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 Board en banc)
A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning in support of conclusions.
Applied to reject speculative retroactive permanent and stationary date and accept 2014 date based on medical opinion.
From the decision · page 15Following our review of the record, and in the absence of contemporaneous medical records, we believe the retroactive assessment in 2014 that applicant reached a permanent and stationary status in 1986 is inherently speculative. 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, supra, 70 Cal.Comp.Cases 604, 621.) However, after reviewing the criteria for a Permanent and Stationary determination, Dr. Einbund opined that there was "no question," that applicant was permanent and stationary as of his evaluation date on March 20, 2014. (Ex. 2, Transcript of the Deposition of Michael Einbund, M.D., at 21:22.) Accordingly, we are persuaded that March 20, 2014 is the first date in the record that identifies applicant's permanent and stationary status to a reasonable degree of medical probability.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical opinions showed difficulties in determining permanent and stationary status retroactively due to lack of contemporaneous records.
From the decision · page 13The inherent difficulties in reaching competent medical conclusions with respect to applicant's medical status more than 25 years after his last football game are evident in the medical-legal reporting herein. Dr. Nudleman's initial report concludes that "[n]eurologically, [applicant] is permanent and stationary, and he became permanent and stationary one year after completing his professional football career." (Ex. 8, Report of Kenneth Nudleman, M.D., dated March 19, 2014, at p. 3.) However, the report fails to disclose any reasoning behind this conclusion. The report does not reflect a review of contemporaneous medical records from 1985 or 1986, and we find the retroactive assessment of a permanent and stationary status more than 30 years prior to be inherently speculative and otherwise unsupported in the record.
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