What the panel ordered
The WCAB vacated its prior grant of reconsideration and affirmed the July 16, 2021 Findings and Order denying SIBTF benefits.
Applicant sought reconsideration of the July 16, 2021 Findings and Order by the WCJ denying SIBTF benefits; the WCJ had found no substantial medical evidence of permanent partial disability to the left lower extremity as of the subsequent injury date.
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.
Applicant failed to provide substantial medical evidence of ratable pre-existing permanent partial disability to the left lower extremity as of the subsequent injury date, and the medical opinions relied on were speculative and unsupported by medical records.
From the decision · page 6In the present case, upon review of the entire records, the undersigned found that Dr. Chen's report was not substantial in that it failed to demonstrate by competent evidence that she had ratable pre-existing partial disability to her alleged varicose vein. Further, applicant's testimony at trial was inconsistent with medical records. What applicant reported to her QMEs were also inconsistent with medical history as reviewed by the doctors.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Chen's opinion was not predicated on reasonable medical probability and lacked supporting medical records
Favours Defendant prevailed
Led to rejection of applicant's claim for pre-existing disability
From the decision · page 7The undersigned also found that Dr. Chen's opinion was not substantial to establish that as of the date of applicant's subsequent industrial injury, applicant was suffering ratable permanent disability in the opposite and corresponding member.
Applicant's testimony was inconsistent with medical records and unsupported by evidence
Favours Defendant prevailed
Undermined applicant's credibility and claim of pre-existing disability
From the decision · page 6In the present case, upon review of the entire records, the undersigned found that Dr. Chen's report was not substantial in that it failed to demonstrate by competent evidence that she had ratable pre-existing partial disability to her alleged varicose vein. Further, applicant's testimony at trial was inconsistent with medical records. What applicant reported to her QMEs were also inconsistent with medical history as reviewed by the doctors.
No contemporaneous medical records or history of lower extremity complaints or varicose veins prior to subsequent injury
Favours Defendant prevailed
No evidence to establish pre-existing ratable disability
From the decision · page 6Next, applicant's testimony was not supported by any evidence whatsoever. Based on Dr. Kirz, he reviewed in excess of 1000 pages of records dating back to the 1990s. Yet, based on Dr. Chen, Dr. Kirz and Dr. Mahmood's reports, there were no documents nor history of any lower extremities complaints, treatment, nor any documented history of limping. There was a document of left arch rash with intermittent lower back pain on 1/23/2006. There was a follow up of plantar dermatitis on 3/17/2006 with another dermatology visit for the probably dyshidrotic eczema vs psoriasis on 4/14/2006. With the exception of these three visits, there were no other medical evidence that remotely mentions lower extremities nor varicose. While applicant testified that she had varicose veins starting in her early 30s and that she sought medical treatment with Stephanie Wong at El Camino Hospital, no such records were reviewed nor mentioned by any of the doctors.
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.
Opinion not substantial medical evidence; failed to demonstrate ratable pre-existing partial disability to varicose vein; opinion speculative and unsupported by medical records.
Opinion not predicated on reasonable medical probability; no supporting medical records; speculative regarding latency and genetic factors of varicose vein.
From the decision · page 7The undersigned also found that Dr. Chen's opinion was not substantial to establish that as of the date of applicant's subsequent industrial injury, applicant was suffering ratable permanent disability in the opposite and corresponding member.
Opinion speculative and unsupported by contemporaneous medical records; could not establish ratable permanent disability in opposite and corresponding member as of subsequent injury date.
No contemporaneous medical records to establish nature and extent of condition prior to subsequent injury; opinion speculative.
From the decision · page 7In Lopez v WCAB (2018) 83 Cal.Comp.Cases 543 (writ denied), Dr. Khuong, the SIBTF med-legal evaluator's opinioned that as osteoarthritis condition takes years to develop and that applicant's condition to the opposite and corresponding member reached permanent and stationary status with ratable permanent disability as of the subsequent industrial injury. However, it was determined that in the absence of any contemporaneous medical records establishing the nature and extent of applicant's condition prior to the subsequent industrial injury, Dr. Khuong's opinion was entirely speculative and could not support the legally required finding that as of the date of
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922
Medical opinion must be predicated on reasonable medical probability and not be speculative
Applied to reject Dr. Chen's opinion as not substantial medical evidence
From the decision · page 2We agree with the WCJ that the opinion of Christopher Chen, M.D., is not substantial medical evidence. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (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, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).)
Cal. Code Regs., tit. 8, § 10974
Requirements for reconsideration based on newly discovered evidence
Applicant failed to comply with requirements for newly discovered evidence in petition for reconsideration
From the decision · page 2Finally, as to the assertion of newly discovered evidence, we note that applicant has failed to comply with the requirements of WCAB Rule 10974, which provides:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony inconsistent with medical records and unsupported by evidence
From the decision · page 6In the present case, upon review of the entire records, the undersigned found that Dr. Chen's report was not substantial in that it failed to demonstrate by competent evidence that she had ratable pre-existing partial disability to her alleged varicose vein. Further, applicant's testimony at trial was inconsistent with medical records. What applicant reported to her QMEs were also inconsistent with medical history as reviewed by the doctors.
No medical records or history of lower extremity complaints or varicose veins prior to subsequent injury
From the decision · page 6Next, applicant's testimony was not supported by any evidence whatsoever. Based on Dr. Kirz, he reviewed in excess of 1000 pages of records dating back to the 1990s. Yet, based on Dr. Chen, Dr. Kirz and Dr. Mahmood's reports, there were no documents nor history of any lower extremities complaints, treatment, nor any documented history of limping. There was a document of left arch rash with intermittent lower back pain on 1/23/2006. There was a follow up of plantar dermatitis on 3/17/2006 with another dermatology visit for the probably dyshidrotic eczema vs psoriasis on 4/14/2006. With the exception of these three visits, there were no other medical evidence that remotely mentions lower extremities nor varicose. While applicant testified that she had varicose veins starting in her early 30s and that she sought medical treatment with Stephanie Wong at El Camino Hospital, no such records were reviewed nor mentioned by any of the doctors.
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About this page
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