ADJ9191050 · September 21, 2026

The Appeals Board found the medical record incomplete and the QME opinion not substantial evidence due to missing relevant medical records and the need for further development of the record to clarify causation and credibility issues.

From the decision · page 4Cases 1303 (writ denied) [statute of limitations does not begin to run prior to applicant’s knowledge she had sustained a cumulative trauma and that injury was work-related].) In the instant case, the QME evaluated applicant on January 15, 2018. After examining applicant and reviewing the medical reports that defendant provided, the QME found industrial causation. (Applicant’s Exhibit #6, at pp. 4-5.) However, we note the QME has not reviewed the subpoenaed records from PIH Health nor the records from Bright Acupuncture Clinic, where applicant was seen for his low back pain. In his report, Dr.

The Appeals Board found that the post-termination defense was established by defendant but the applicant must be given the opportunity to develop the medical record to prove an exception to the defense.

The Appeals Board could not address the statute of limitations defense without a fully developed medical record and QME supplemental report to clarify causation and timing of injury knowledge.

From the decision · page 8(Lab. Code, § 5405.) Thus, an applicant must commence proceedings with the WCAB within one year of (1) the date of injury; or (2) the expiration of the period covered by the employer's last payment of disability indemnity; or (3) the date of the last furnishing by the employer of medical, surgical or hospital treatment. (J.T. Thorp v. Workers’ Comp. Appeals. Bd. (1984) 153 Cal.App.3d 327 [49 Cal.Comp.Cases 224].) The statute of limitations is an affirmative defense, and therefore, the burden of proof rests with defendant. (Lab. Code, §§ 5409, 5705.) However, pursuant to section 5401(a), an employer has a duty to inform an injured employee of their workers’ compensation rights when the employer has actual or constructive knowledge of a work-related injury. Failing to meet that duty equitably tolls the above time limits. (Kaiser Found. Hosp. Permanente Medical Grp. v. Workers’ Comp. Appeals Bd. (1985) 39 Cal.3d 57, 66 [50 Cal.Comp.Cases 411]; Reynolds v. Workmen’s Comp. Appeals Bd.

QME did not review subpoenaed medical records from PIH Health and Bright Acupuncture Clinic.

Favours Applicant prevailed

Without complete medical records, QME opinion is not substantial evidence to support injury causation finding.

From the decision · page 4Silver also noted applicant initially sought medical attention with his general practitioner, Dr. Reyes, and that clarification regarding the actual date of injury could possibly be obtained by obtaining records from Dr. Reyes. (Id. at p. 4.) Without review of all the relevant medical records, Dr. Silver’s opinions are not based on an accurate medical history and consequently, are not substantial medical evidence. Once the record has been appropriately developed, the WCJ will, in turn, need to review the medical-legal reporting and determine whether the QME reporting constitutes substantial evidence. (Lamb, supra, 11 Cal. 3d at p. 281; Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525] [relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions].) The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924] [“The principle of allowing full development of

Defendant established applicant was terminated before claim filing, satisfying initial burden for post-termination defense.

Favours Defendant prevailed

This establishes the applicability of the post-termination defense unless applicant proves an exception.

Applicant submitted incomplete medical records from acupuncture and PIH Health and testified to treatment history.

Favours Applicant prevailed

Further development of medical record is necessary to adjudicate post-termination defense and statute of limitations issues.

From the decision · page 7However, the actual treatment records spanning the period from May 27, 2005 through November 29, 2013 were not submitted into evidence. Although applicant submitted into evidence subpoenaed records from PIH, the only records from PIH admitted as Exhibit 1 reflect an office visit with Dr. Malhis on July 12, 2017. The records do not indicate a specific injury occurring in 2012 but do reference longstanding back issues for the past five years. Moreover, although applicant testified he went to see his doctor, Dr. Reyes, who he saw until about 2015, records have not been submitted. (MOH/SOE, September 25, 2019, at p.5:19-21.) This matter must be returned for development of the record to obtain the complete records from Dr. Reyes, PIH, and Bright Acupuncture Clinic. These records are needed to fully adjudicate the issue of whether the post-termination defense per section 3600(a)(10) applies. IV. We will now address whether applicant’s claim is barred by the statute of limitations. Generally, the filing of an application commences proceedings before the WCAB. (Lab. Code, § 5500; Cal. Code Regs., tit. 8, § 10450.) The time limitations for commencing proceedings are set forth in section 5405 as follows:

Found industrial causation of the claimed injury but did not find maximum medical improvement; opinion not substantial evidence due to incomplete medical record review.

Did not review subpoenaed records from PIH Health or Bright Acupuncture Clinic; opinion not based on accurate medical history.

From the decision · page 4Cases 1303 (writ denied) [statute of limitations does not begin to run prior to applicant’s knowledge she had sustained a cumulative trauma and that injury was work-related].) In the instant case, the QME evaluated applicant on January 15, 2018. After examining applicant and reviewing the medical reports that defendant provided, the QME found industrial causation. (Applicant’s Exhibit #6, at pp. 4-5.) However, we note the QME has not reviewed the subpoenaed records from PIH Health nor the records from Bright Acupuncture Clinic, where applicant was seen for his low back pain. In his report, Dr.

Noted severe degeneration of lumbar spine discs and recommended MRI; referred by Dr. Gregory Galbreath for back pain of five years duration.

From the decision · page 2(Applicant’s Exhibit #3, Treatment Report by Lily Li, L.Ac, dated November 29, 2013.) Applicant obtained treatment at Bright Acupuncture Clinic two to four times a month with his last session on November 29, 2013. (Id.) Applicant sought treatment with Lily Li, L.Ac at Bright Acupuncture Clinic on November 29, 2013. (Id.) On July 12, 2017, applicant was evaluated by Talal Malhis, M.D., at PIH Health. (Applicant’s Exhibit #1, Records from PIH Health, dated July 12, 2017, at p. 1.) Dr. Malhis noted applicant was being referred by Dr. Gregory Galbreath for the back pain he has had for five years (Id.) Dr. Malhis reviewed an x-ray of the lumbar spine which showed severe degeneration of all discs. (Id.) Dr. Malhis recommended applicant obtain an MRI of the lumbar spine. (Id. at p. 5.) Applicant was evaluated by orthopedic surgery panel qualified medical evaluator (QME), Lee Silver, M.D., who issued two reports dated January 15, 2018 and April 2, 2018. As of April 2, 2018, the QME found that applicant’s claimed injury was caused by his employment, but did

Labor Code section 3600(a)(10)

Post-termination defense requires defendant to prove claim filed after termination and injury occurred before termination; burden then shifts to applicant to prove exceptions.

Applied to assess post-termination defense and exceptions.

From the decision · page 6III. We now turn to the issue of whether the post-termination defense under section 3600(a)(10) applies. The WCJ found applicant’s claim to be barred by section 3600(a)(10), which provides in pertinent part that: (10) Except for psychiatric injuries governed by subdivision (e) of Section 3208.3, where the claim for compensation is filed after notice of termination or layoff, including voluntary layoff, and the claim is for an injury occurring prior to the time of notice of termination or layoff, no compensation shall be paid unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:

Labor Code sections 5405, 5401(a)

Statute of limitations requires claim to be filed within one year of injury or last treatment; employer duty to inform can toll limitations.

Applied to assess statute of limitations defense and tolling.

E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922

Medical opinion must be based on reasonable medical probability, adequate examination and history, and not be speculative.

Applied to evaluate the sufficiency of QME medical opinion.

From the decision · page 3Code, §§ 4060(c)(d), 4061(i), 4062.3(l).) A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. 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].) “[T]he medical cause of an ailment is usually a scientific question, requiring a judgment based upon scientific knowledge and inaccessible to the unguided rudimentary capacities of lay arbiters.” (McLaughlin, supra, 234 Cal.App.2d at p. 839 [“[i]n a field which forces the experts into hypothesis, unaided lay judgment amounts to nothing more than speculation”].)

Applicant's testimony and defendant's witness testimony regarding termination date

Incomplete medical record review by QME

From the decision · page 4Silver also noted applicant initially sought medical attention with his general practitioner, Dr. Reyes, and that clarification regarding the actual date of injury could possibly be obtained by obtaining records from Dr. Reyes. (Id. at p. 4.) Without review of all the relevant medical records, Dr. Silver’s opinions are not based on an accurate medical history and consequently, are not substantial medical evidence. Once the record has been appropriately developed, the WCJ will, in turn, need to review the medical-legal reporting and determine whether the QME reporting constitutes substantial evidence. (Lamb, supra, 11 Cal. 3d at p. 281; Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525] [relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions].) The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, §§ 5701, 5906; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924] [“The principle of allowing full development of