ADJ9840500 · May 10, 2024

Applicant was found entitled to an additional QME panel in psychiatry/psychology based on Dr. Mehta's report indicating the necessity of a psyche evaluation and the Board's policy favoring adjudication on the merits over pleading technicalities.

From the decision · page 6208-210). Finally, we emphasize that WCAB Rule 10517 specifies that pleadings are deemed amended to conform to the stipulations agreed to by the parties on the record or may be amended by the Appeals Board to conform to proof. (Cal. Code Regs., tit. 8, § 10517, emphasis added.) This Rule represents the application of California's public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings. Here, applicant seeks the issuance of an additional panel in psychology to evaluate whether she has sustained an injury AOE/COE to her psyche. Yet, she did not raise the issue of injury to psyche at trial and has not filed a pleading claiming injury to psyche. However, in the interests of substantial justice, this pleading technicality should not deprive the Board of jurisdiction. Based on the facts before us, i.e., because orthopedic QME Dr. Mehta stated that a psyche evaluation would be necessary to assess applicant's anxiety and depression (Ex. 103, Dr. Mehta's September 4, 2019 report, p. 5), we will conform the pleadings to proof and find that applicant claimed injury to her psyche.

The medical reports of Dr. Levy and Dr. Mehta were found to be substantial evidence based on thorough examinations, detailed histories, and well-reasoned opinions.

From the decision · page 13Dr. Levy's Medical Reports Applicant is of the opinion that Dr. Levy's reports are not substantial evidence. The applicant believes that Dr. Levy's medical report denies due process to a non-English speaking injured worker. The Appeals Court determined that 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 v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Dr. does not state that 50 percent apportionment would be reasonable partially due to the normal progress of the preexisting injury). (Granado v. Workmen's Comp. App. Bd., 33 Cal. Comp. Cases 647) Dr. Levy was the PQME for internal medicine. He authored eight (8) reports. He took a detailed history. He reviewed several medical reports, diagnostic tests and performed a comprehensive examination of the applicant throughout his medical reporting. Dr. Levy reviewed

Orthopedic QME Dr. Mehta stated in his September 4, 2019 report that a psyche evaluation would be necessary to assess applicant's anxiety and depression.

Favours Applicant prevailed

This medical opinion supported granting an additional psychiatric/psychology QME panel despite the absence of a formal pleading claiming psyche injury.

From the decision · page 6208-210). Finally, we emphasize that WCAB Rule 10517 specifies that pleadings are deemed amended to conform to the stipulations agreed to by the parties on the record or may be amended by the Appeals Board to conform to proof. (Cal. Code Regs., tit. 8, § 10517, emphasis added.) This Rule represents the application of California's public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings. Here, applicant seeks the issuance of an additional panel in psychology to evaluate whether she has sustained an injury AOE/COE to her psyche. Yet, she did not raise the issue of injury to psyche at trial and has not filed a pleading claiming injury to psyche. However, in the interests of substantial justice, this pleading technicality should not deprive the Board of jurisdiction. Based on the facts before us, i.e., because orthopedic QME Dr. Mehta stated that a psyche evaluation would be necessary to assess applicant's anxiety and depression (Ex. 103, Dr. Mehta's September 4, 2019 report, p. 5), we will conform the pleadings to proof and find that applicant claimed injury to her psyche.

Applicant did not raise the issue of injury to psyche at trial and had not filed a pleading claiming injury to psyche.

Favours Applicant prevailed

Despite this procedural deficiency, the Board applied liberal pleading rules and amended the pleadings to conform to proof to allow the psychiatric panel.

From the decision · page 6208-210). Finally, we emphasize that WCAB Rule 10517 specifies that pleadings are deemed amended to conform to the stipulations agreed to by the parties on the record or may be amended by the Appeals Board to conform to proof. (Cal. Code Regs., tit. 8, § 10517, emphasis added.) This Rule represents the application of California's public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings. Here, applicant seeks the issuance of an additional panel in psychology to evaluate whether she has sustained an injury AOE/COE to her psyche. Yet, she did not raise the issue of injury to psyche at trial and has not filed a pleading claiming injury to psyche. However, in the interests of substantial justice, this pleading technicality should not deprive the Board of jurisdiction. Based on the facts before us, i.e., because orthopedic QME Dr. Mehta stated that a psyche evaluation would be necessary to assess applicant's anxiety and depression (Ex. 103, Dr. Mehta's September 4, 2019 report, p. 5), we will conform the pleadings to proof and find that applicant claimed injury to her psyche.

Dr. Levy authored eight reports, took detailed history, reviewed medical reports and diagnostic tests, and performed comprehensive examinations. His reports were found to be substantial evidence addressing internal claims.

Reports were thorough, well-reasoned, and based on adequate examination and history.

From the decision · page 13Dr. Levy's Medical Reports Applicant is of the opinion that Dr. Levy's reports are not substantial evidence. The applicant believes that Dr. Levy's medical report denies due process to a non-English speaking injured worker. The Appeals Court determined that 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 v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Dr. does not state that 50 percent apportionment would be reasonable partially due to the normal progress of the preexisting injury). (Granado v. Workmen's Comp. App. Bd., 33 Cal. Comp. Cases 647) Dr. Levy was the PQME for internal medicine. He authored eight (8) reports. He took a detailed history. He reviewed several medical reports, diagnostic tests and performed a comprehensive examination of the applicant throughout his medical reporting. Dr. Levy reviewed

Dr. Mehta issued five well-reasoned reports, performed thorough examinations, reviewed diagnostic tests, and opined that a psyche evaluation was necessary for anxiety and depression. His reports were found to be substantial evidence for bilateral carpal tunnel injury.

Reports were well reasoned and based on thorough examination and review of evidence.

From the decision · page 15Dr. Mehta's Medical Reports Applicant is of the opinion that Dr. Mehta's reports are not substantial evidence. To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and reasoning, in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604, 621 (Appeals Board en banc).) A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Dr. does not state that 50 percent apportionment would be reasonable partially due to the normal progress of the preexisting injury). (Granado v. Workmen's Comp. App. Bd., 33 Cal. Comp. Cases 647) Dr. Mehta was utilized as an orthopedic PQME. He issued five (5) medical reports. His reports were well reasoned. He performed a thorough examination of the applicant. He reviewed various diagnostic tests including EMG/nerve studies in his initial permanent and stationary report in 2019. (Ex. 103, pg. 4-5). Additional studies were reviewed in this June 9, 2022, supplemental report. There were no complaints as to lower extremities or spine. Examination of bilateral lower extremities hips, knees and ankles were normal. (Ex. 104, pg. 7) He reviewed Dr. Levy's medical reports and those of her primary treating physicians, Dr.

Administrative Director Rule 31.7(b)

Administrative Director Rule 31.7(b) allows issuance of an additional QME panel in a different specialty upon showing good cause.

Applied to grant additional psychiatric/psychology QME panel.

From the decision · page 7Administrative Director (AD) Rule 31.7(b) provides for an additional QME panel in

Labor Code section 5709

Labor Code section 5709 states no informality shall invalidate any order or decision.

Supported liberal pleading and adjudication on merits over technicalities.

From the decision · page 5490 [67 Cal.Comp.Cases 1273].) Informality of pleading in proceedings before the Board has long been recognized, and courts have repeatedly rejected pleading technicalities as grounds for depriving the Board of jurisdiction. (McGee Street Productions v. Workers' Comp. Appeals Bd. (2003) 108 Cal.App.4th 717, 724 [68 Cal.Comp.Cases 708]; Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 200-01 [50 Cal.Comp.Cases 160]; Liberty Mutual Ins. Co. v. Workers' Comp. Appeals Bd. (1980) 109 Cal.App.3d 148, 152-153 [45 Cal.Comp.Cases 866].) Moreover, section 5709 states that "[n]o informality in any proceeding or in the manner of taking testimony shall invalidate any order, decision, award, or rule made and filed as specified in this division..." (Lab. Code, § 5709.) "Necessarily, failure to comply with the rules as to details is not jurisdictional." (Rubio, supra, at pp. 200-201; see Cal. Code Regs., tit. 8, § 10517.)

Code of Civil Procedure sections 452, 473, 576

Code of Civil Procedure sections 452, 473, 576 emphasize liberal pleading and relief from procedural mistakes.

Supported liberal construction of pleadings to favor substantial justice.

From the decision · page 4We observe that the principles of "liberal pleading" have long infused California's statutory landscape. Enacted in 1872, Code of Civil Procedure section 452 requires that, "[i]n the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Also enacted in 1872, Code of Civil Procedure section 473 provides in pertinent part, "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Cal. Code Civ. Proc. § 473(b).) Enacted more "recently" in 1963 is Code of Civil Procedure section 576, which provides that, "[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order." What follows from these statutory pronouncements is more than a century of consistent jurisprudence emphasizing the public policy preference favoring adjudication on the merits, rather than on procedural deficiencies.

WCAB Rule 10517

WCAB Rule 10517 allows pleadings to be amended to conform to proof.

Allowed conforming pleadings to proof of psyche injury claim.

From the decision · page 6208-210). Finally, we emphasize that WCAB Rule 10517 specifies that pleadings are deemed amended to conform to the stipulations agreed to by the parties on the record or may be amended by the Appeals Board to conform to proof. (Cal. Code Regs., tit. 8, § 10517, emphasis added.) This Rule represents the application of California's public policy in favor of adjudication of claims on their merits, rather than on the technical sufficiency of the pleadings. Here, applicant seeks the issuance of an additional panel in psychology to evaluate whether she has sustained an injury AOE/COE to her psyche. Yet, she did not raise the issue of injury to psyche at trial and has not filed a pleading claiming injury to psyche. However, in the interests of substantial justice, this pleading technicality should not deprive the Board of jurisdiction. Based on the facts before us, i.e., because orthopedic QME Dr. Mehta stated that a psyche evaluation would be necessary to assess applicant's anxiety and depression (Ex. 103, Dr. Mehta's September 4, 2019 report, p. 5), we will conform the pleadings to proof and find that applicant claimed injury to her psyche.

Use of two interpreters during Dr. Levy's examination did not encumber medical conclusions.

From the decision · page 14There were two interpreters utilized during her December 12, 2023, examination with Dr. Levy. (Ex. 111, pg. 1). One interpreter stated that the applicant tripped and fell while at her mother's funeral. (Ex. 111, pg. 2). The second interpreter and applicant stated that the applicant did not trip. Her knee gave way. (Ex. 111, pg. 3). the applicant testified that she had surgery to left knee and not her right. the applicant testified that she believed that two (2) interpreters during Dr. Levy's examination caused confusion. (2/7/24 SOE pg. 1, ln. 1-2). Dr. Levy relied on review of all medical reports including his previous reports and those of her many treating physicians and diagnostic testing in his conclusions. The use of two interpreters did not encumber his medical conclusions. Dr. Levy was the internal QME. Dr. Levy addressed the internal claims.