What the panel ordered
Findings, Award, and Order affirmed except amended to find QME Dr. Wieseltier's reports not substantial evidence on apportionment; permanent disability issue deferred; applicant entitled to future medical care; issue of treatment outside MPN deferred; matter returned to WCJ for further proceedings
Petition for Reconsideration granted to further study factual and legal issues; decision after reconsideration issued affirming in part and amending the WCJ's Findings, Award, and Order; matter returned to WCJ 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.
Dr. Wieseltier's apportionment opinion lacked explanation on how preexisting conditions caused permanent disability and was thus not substantial evidence; issue deferred for further development.
From the decision · page 8It appears that Dr. Wieseltier speculated that the disability from applicant's pre-existing knee condition would have "manifested" without the June 20, 2015 injury. He did not explain how and why the pre-existing condition was causing permanent disability at the time of the evaluation, nor did he explain how and why those factors are responsible for 40% of applicant's right knee disability. Nor did he explain how he could apportion disability when he had not yet determined applicant's disability. Thus, Dr. Wieseltier's conclusion regarding apportionment, as stated in the December 12, 2019 report and quoted in the June 23, 2020 report, does not constitute substantial evidence.
Applicant found in need of future medical care; issue of treatment outside defendant's MPN deferred for further proceedings due to procedural complexities and inconsistencies.
From the decision · page 8Accordingly, we affirm the F&O except we amend the F&O to find that the reports from Harvey R. Wieseltier, M.D., are not substantial evidence on the issue of apportionment; to defer the issue of permanent disability caused by applicant's injury; to find that applicant is in need of future medical care and to defer the issue of whether applicant may seek medical treatment at defendant's expense from a physician who is not in defendant's MPN. We amend the Award based thereon and we return the matter to the WCJ for further proceedings consistent with this opinion.
Permanent disability issue deferred due to lack of substantial evidence on apportionment and need for further record development.
From the decision · page 8Accordingly, we affirm the F&O except we amend the F&O to find that the reports from Harvey R. Wieseltier, M.D., are not substantial evidence on the issue of apportionment; to defer the issue of permanent disability caused by applicant's injury; to find that applicant is in need of future medical care and to defer the issue of whether applicant may seek medical treatment at defendant's expense from a physician who is not in defendant's MPN. We amend the Award based thereon and we return the matter to the WCJ for further proceedings consistent with this opinion.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Wieseltier's apportionment opinion lacked explanation on how preexisting conditions caused permanent disability and was thus not substantial evidence
Favours Defendant prevailed
This led to deferral of the apportionment and permanent disability issues for further record development
From the decision · page 8It appears that Dr. Wieseltier speculated that the disability from applicant's pre-existing knee condition would have "manifested" without the June 20, 2015 injury. He did not explain how and why the pre-existing condition was causing permanent disability at the time of the evaluation, nor did he explain how and why those factors are responsible for 40% of applicant's right knee disability. Nor did he explain how he could apportion disability when he had not yet determined applicant's disability. Thus, Dr. Wieseltier's conclusion regarding apportionment, as stated in the December 12, 2019 report and quoted in the June 23, 2020 report, does not constitute substantial evidence.
Applicant testified that Dr. Hacker left the defendant's MPN and she had to stop treating with him
Favours Applicant prevailed
Supports applicant's claim for entitlement to future medical treatment and treatment outside the MPN
From the decision · page 5Hacker, he was in defendant's MPN. "However, he is no longer in the defendant's MPN."
Defendant did not comply with MPN notice requirements
Favours Applicant prevailed
Supports applicant's entitlement to future medical care and deferral of treatment outside MPN issue
From the decision · page 6Review of the record indicates that defendant did not comply with the MPN notice
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. Wieseltier opined 35% lumbar disability due to nonindustrial factors and 65% due to industrial injury; 40% right knee disability due to nonindustrial factors and 60% due to industrial injury, but his apportionment opinion lacked substantial evidence due to insufficient explanation.
Did not explain how preexisting conditions caused permanent disability or justify apportionment percentages; rating was pending additional testing.
From the decision · page 8It appears that Dr. Wieseltier speculated that the disability from applicant's pre-existing knee condition would have "manifested" without the June 20, 2015 injury. He did not explain how and why the pre-existing condition was causing permanent disability at the time of the evaluation, nor did he explain how and why those factors are responsible for 40% of applicant's right knee disability. Nor did he explain how he could apportion disability when he had not yet determined applicant's disability. Thus, Dr. Wieseltier's conclusion regarding apportionment, as stated in the December 12, 2019 report and quoted in the June 23, 2020 report, does not constitute substantial evidence.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code 5952
Substantial evidence standard for Appeals Board decisions
An award, order, or decision must be supported by substantial evidence in light of the entire record.
From the decision · page 7As discussed above, the record in this matter regarding the issue of whether applicant is entitled to be treated, at defendant's expense, by a physician who is not in defendant's MPN is complex and contains several inconsistencies. An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code § 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Under the circumstances of this matter, it is appropriate that it be returned to the trial level for further proceedings. We recommend that the WCJ confer with the parties to determine how to proceed with further development of the record.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
Requirements for apportionment evidence
Medical opinion must disclose familiarity with apportionment concepts, delineate percentages, and explain nature and effect of other factors causing disability.
From the decision · page 7Regarding the issue of apportionment, in order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, the physician must explain the nature of the other factors, how and why those factors are causing permanent disability at the time of the evaluation, and how and why those factors are responsible for the percentage of disability assigned by the physician. (Id. at 621)
Lab. Code 5701, 5906
Authority to develop record when evidence insufficient
Appeals Board has discretionary authority to develop record when evidence is insufficient to determine an issue.
From the decision · page 7As discussed above, the record in this matter regarding the issue of whether applicant is entitled to be treated, at defendant's expense, by a physician who is not in defendant's MPN is complex and contains several inconsistencies. An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code § 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635-637 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence or when appropriate to fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Under the circumstances of this matter, it is appropriate that it be returned to the trial level for further proceedings. We recommend that the WCJ confer with the parties to determine how to proceed with further development of the record.
Cal. Code Regs., tit. 8, 9767.10; Lab. Code 4600(d); Lab. Code 4062
MPN Continuity of Care Policy and transfer dispute resolution
Rules governing completion of treatment by terminated providers and transfer of care disputes.
From the decision · page 4Pursuant to Administrative Rule 9767.10, Continuity of Care Policy:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about treatment with Dr. Hacker and MPN status
From the decision · page 5Hacker, he was in defendant's MPN. "However, he is no longer in the defendant's MPN."
Defendant's failure to comply with MPN notice requirements
From the decision · page 6Review of the record indicates that defendant did not comply with the MPN notice
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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