ADJ10362589 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.

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.

Reconsideration / removalRemanded

The Appeals Board granted reconsideration to allow further review of the merits and the entire record due to unclear substantial medical evidence and incomplete record development.

From the decision · page 7Here, it is unclear from our preliminary review that there is substantial medical evidence to support the WCA's decision regarding industrial causation without additional development of the record. Where the medical evidence or opinion on an issue is incomplete, stale, and no longer germane, or is based on an inaccurate history, or speculation, it does not constitute substantial evidence. (Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

The facts that decided it

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

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.

AMEGiven great weight

AME Dr. Bernicker's opinions were found more persuasive and reliable than Dr. Tontz's opinions.

The Arbitrator found Dr. Bernicker's opinions more persuasive and reliable in the medical evidence blending process.

From the decision · page 6The medical reporting and opinions rendered particularly by Dr. Tontz and somewhat by Dr. Bernicker were less than stellar or reliable partly due to the extraordinary number of times these physicians were asked to reflect and report on the same subject matter, including issuing multiple reports and giving depositions, over an ex tended period of time. Additionally, it appears to the Arbitrator that by the totality of the efforts made by counsel to seek clarifying opinions with arguably new or additional evidence to review and comment upon, the record became confused, redundant and conflicting. Consequently, the Arbitrator's approach in evaluating, understanding, and weighing the evidence, in order to make a rational and substantial decision was to 'blend' the opinions within the range of evidence. However, it should be noted that, as between the primary medical reporting presented (Bernicker and Tontz), AME Dr. Bernicker's opinions were, and continue to be, the more persuasive and reliable opinion.

PTPPartially credited

Dr. Tontz's medical reports and opinions were considered less reliable and somewhat conflicting due to multiple revisions and depositions over time.

The Arbitrator noted Dr. Tontz's reports were less reliable due to multiple revisions and conflicting statements.

From the decision · page 6The medical reporting and opinions rendered particularly by Dr. Tontz and somewhat by Dr. Bernicker were less than stellar or reliable partly due to the extraordinary number of times these physicians were asked to reflect and report on the same subject matter, including issuing multiple reports and giving depositions, over an ex tended period of time. Additionally, it appears to the Arbitrator that by the totality of the efforts made by counsel to seek clarifying opinions with arguably new or additional evidence to review and comment upon, the record became confused, redundant and conflicting. Consequently, the Arbitrator's approach in evaluating, understanding, and weighing the evidence, in order to make a rational and substantial decision was to 'blend' the opinions within the range of evidence. However, it should be noted that, as between the primary medical reporting presented (Bernicker and Tontz), AME Dr. Bernicker's opinions were, and continue to be, the more persuasive and reliable opinion.

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

Substantial medical evidence must be based on reasonable medical probability, adequate examination and history, and not be speculative or erroneous.

Medical reports and opinions must be reliable and supported by reasoning to constitute substantial evidence.

From the decision · page 7Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 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].)

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Medical opinion fails to support findings if based on surmise, speculation, conjecture or guess.

Medical opinions must not be speculative or conjectural to be substantial evidence.

From the decision · page 7Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 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].)

ADJ10362589 · May 18, 2026

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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