ADJ9227113 — California WCAB decision

What the panel ordered

The WCAB affirmed the Findings and Orders issued by the WCJ on March 9, 2021, denying defendant's petition for reconsideration and rejecting the request for a replacement QME panel.

Defendant sought reconsideration of the Findings and Orders issued by the WCJ on March 9, 2021, challenging the substantiality of QME Dr. Jay Jurkowitz's opinions and requesting a replacement neurology QME panel.

Read the official decision →

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 / IMRApplicant prevailedleft middle finger · right middle finger · right shoulder · cervical spine · thoracic spine · lower extremities · elbows

The Appeals Board found that the substantiality of Dr. Jurkowitz's opinions was properly considered and that the defendant's request for a replacement QME panel based on lack of substantial evidence was not authorized by Rule 31.5(a).

From the decision · page 3Defendant is seeking a replacement QME panel in neurology. Preliminarily, the record does not indicate that defendant raised the issue of a replacement panel at trial. "It 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.).) It is also unclear why the substantiality of Dr. Jurkowitz's reporting was raised at this trial when the only condition he has opined on is applicant's claimed CRPS and causation for this condition was not identified as an issue to be adjudicated. To date, there has been no finding regarding whether applicant's claim of injury in the form of CRPS is industrially related.

The facts that decided it

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

Defendant did not raise the issue of a replacement QME panel at trial and the issue was not identified as a trial issue.

Favours Applicant prevailed

The Appeals Board held that it is improper to seek reconsideration on an issue not presented at trial, thus denying the replacement panel request.

From the decision · page 3Defendant is seeking a replacement QME panel in neurology. Preliminarily, the record does not indicate that defendant raised the issue of a replacement panel at trial. "It 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.).) It is also unclear why the substantiality of Dr. Jurkowitz's reporting was raised at this trial when the only condition he has opined on is applicant's claimed CRPS and causation for this condition was not identified as an issue to be adjudicated. To date, there has been no finding regarding whether applicant's claim of injury in the form of CRPS is industrially related.

Rule 31.5(a) does not authorize replacement of a QME panel based on the physician's opinions not being substantial evidence.

Favours Applicant prevailed

This legal standard barred the defendant's request for a replacement panel on the grounds of lack of substantial evidence.

From the decision · page 4substantiality of Dr. Jurkowitz's opinions with respect to applicant's alleged CRPS.3 Administrative Director (AD) Rule 31.5(a) enumerates 16 circumstances under which a party may request a replacement QME panel. (Cal. Code Regs., tit. 8, § 31.5(a).) Despite the evidentiary requirement that decisions by the Appeals Board be supported by substantial evidence, this is not one of the enumerated reasons for a replacement QME panel pursuant to Rule 31.5(a). (See 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].) Consequently, Rule 31.5(a) does not provide authority for a replacement QME panel on the grounds that the physician's opinions are not substantial 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.

QMERelied upon · neurology

Initially found no objective evidence of work-related neurologic problem; later testified applicant "probably" has work-related CRPS.

The Appeals Board found his opinions to be substantial medical evidence despite defendant's challenge.

From the decision · page 1Defendant seeks reconsideration of the Findings and Orders (F&O) issued by the workers' compensation administrative law judge (WCJ) on March 9, 2021. By the F&O, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to her left middle finger in ADJ9227113, and to her right middle finger and right shoulder in ADJ9638263. The WCJ also found that the reports and deposition of the qualified medical evaluator (QME), Dr. Jay Jurkowitz, are substantial medical evidence.

QMERelied upon · orthopedics

Opined injury to left long finger from specific incident and cumulative trauma injury to cervical spine, shoulders, wrists, and hands.

From the decision · page 2Darren Bergey, M.D. evaluated applicant as the orthopedic QME. He opined that she sustained injury to her left long finger as a result of the specific incident on July 11, 2012 and a separate cumulative trauma injury to her cervical spine, bilateral shoulders, bilateral wrists and hands. (Defendant's Exhibit A, Report of Darren Bergey, M.D., February 25, 2020, p. 50.)

PTPPartially credited

Reports offered by applicant's treating physician were objected to by defendant but admitted as exhibits.

From the decision · page 2The matter proceeded to trial on November 25, 2020 with the issue identified as: "Whether the QME reporting and deposition testimony of Dr. Jay Jurkowitz amounts to substantial medical evidence." (Minutes of Hearing and Summary of Evidence and Order of Consolidation, November 25, 2020, p. 3.) Defendant also objected to the admissibility of applicant's exhibits, which solely included reports from her treating physician, Dr. Narinder Grewal. (Id.) The parties stipulated to injury AOE/COE to the left middle finger for the specific injury (ADJ9227113), and to the right middle finger and right shoulder for the cumulative trauma injury (ADJ9638263). (Id. at p. 2.) Whether applicant's claimed CRPS is industrially related was not identified as an issue at trial. Defendant offered the reports and deposition transcript of Dr. Jurkowitz as its exhibits B-E. (Id. at p. 3.)1

The rules the panel named

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

Labor Code section 5909

Petition for reconsideration must be acted upon within 60 days unless tolled.

From the decision · page 3I. Labor Code2 section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits of Labor Code section 5909. The Appeals Board did not act on applicant's petition because it had misplaced the file, through no fault of the parties. The Court of Appeal reversed the Appeals Board's decision holding that the time to act on applicant's petition was tolled during the period that the file was misplaced. (Id. at p. 1108.) Like the Court in Shipley, "we are not convinced that the burden of the system's inadequacies should fall on [a party]." (Shipley, supra, 7 Cal.App.4th at p. 1108.) Defendant's Petition was timely filed on March 25, 2021. Our failure to act was due to a procedural error and our time to act on defendant's Petition was tolled.

Cal. Code Regs., tit. 8, 31.5(a)

Administrative Director Rule 31.5(a)

Enumerates grounds for replacement QME panel; lack of substantial evidence is not one.

From the decision · page 4substantiality of Dr. Jurkowitz's opinions with respect to applicant's alleged CRPS.3 Administrative Director (AD) Rule 31.5(a) enumerates 16 circumstances under which a party may request a replacement QME panel. (Cal. Code Regs., tit. 8, § 31.5(a).) Despite the evidentiary requirement that decisions by the Appeals Board be supported by substantial evidence, this is not one of the enumerated reasons for a replacement QME panel pursuant to Rule 31.5(a). (See 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].) Consequently, Rule 31.5(a) does not provide authority for a replacement QME panel on the grounds that the physician's opinions are not substantial evidence.

Lab. Code, 5903, 5952(d)

Labor Code sections 5903, 5952(d)

Decisions must be based on admitted evidence; no basis to replace QME without substantial evidence.

From the decision · page 4In the absence of substantial evidence to support replacing Dr. Jurkowitz as the QME, we discern no basis to strike his reporting or issue a replacement QME panel. (See Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc) [decisions by the Appeals Board must be based on admitted evidence].)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Appeals Board decisions must be based on admitted evidence; no basis to replace QME without substantial evidence.

From the decision · page 4In the absence of substantial evidence to support replacing Dr. Jurkowitz as the QME, we discern no basis to strike his reporting or issue a replacement QME panel. (See Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc) [decisions by the Appeals Board must be based on admitted evidence].)

ADJ9227113 · September 22, 2021

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page