ADJ10540177 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration denied by the Workers' Compensation Appeals Board panel

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 prevailedbilateral knees

The panel found the medical opinions of primary treating physician Dr. Powell to constitute substantial medical evidence, properly relied upon by the WCJ, despite conflicting opinions from the PQME Dr. Xeller, whose opinions were found unreliable and not substantial.

From the decision · page 12For the reasons stated in the WCJ's report, we agree that the opinion of treating physician Lonnie Powell, D.C., is substantial medical evidence upon which the WCJ properly relied. 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.).) We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

The facts that decided it

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

Dr. Powell's P&S report dated 8/31/2020 was based on his treatment history, physical examination, and review of medical records, supporting Applicant's bilateral knee injury and need for ongoing medical care.

Favours Applicant prevailed

This report was accepted as substantial medical evidence by the panel, forming the basis for the decision to deny reconsideration and support Applicant's claim.

From the decision · page 6The Petition avers Dr. Powell's P&S report dated 8/31/2020 does not constitute substantial medical evidence contending his opinions are not based on any medical reports [Petition, p. 3, lines 19-20] Dr. Powell's 8/31/2020 P&S report indicates his opinions are based on having reviewed the history as provided by Applicant, physical examination findings, and the voluminous records reviewed. [App Ex 1, pp. 10&15] For the first time Petitioner seeks to present newly raised argument that Dr. Powell's 8/31/2020 report does not constitute substantial medical evidence because the report does not identify which reports he reviewed. As discussed supra, III.A.1. Dr. Powell is Applicant's PTP. As Applicants PTP, Dr. Powell has treated Applicant issuing progress reports and FRFA in regular intervals. Dr. Powell has also managed and coordinated Applicant's referrals for diagnostic studies, consultations and treatment authorization. While individual reports of Dr. Powell were not 8 offered into evidence based on Defendant's failure to properly and timely identify this as a contested issue, Panel QME Xeller summary of treatment reports submitted to him for review demonstrate Dr.

Dr. Xeller's opinions were found unreliable and not substantial medical evidence due to incomplete evaluation, incorrect legal theory, and failure to evaluate additional body parts beyond bilateral knees.

Favours Applicant prevailed

The panel rejected Dr. Xeller's opinions, which were relied upon by the defense, thus favoring the Applicant's position.

From the decision · page 8reviewed and summarized numerus medical records over the course of 5 years he served as the panel QME, and purportedly "evaluated" Applicant on at least 5 different occasions, issuing at least 6 reports, from this Court's evidentiary record and providing additional medical opinion by way of testimony during 1 deposition. Expert medical opinion, however, does not always constitute substantial evidence on which the board may rest its decision. Courts have held that the board may not rely on medical reports which it knows to be erroneous (McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 92) This Court the Petitions averment that Dr. Xeller's medical opinion 10 constitutes substantial medical evidence merely because he reviewed medical records and evaluated Applicant multiple time is misplaced rather than basing it on the substance of his reporting misplaced.

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.

PTPRelied upon · chiropractor

Dr. Powell's permanent and stationary report dated 8/31/2020 constitutes substantial medical evidence based on his treatment history, physical examination, and review of medical records, supporting Applicant's bilateral knee injury and need for ongoing medical care.

The panel accepted Dr. Powell's opinions as substantial medical evidence, finding his report based on comprehensive treatment and review of records, and properly relied upon by the WCJ.

From the decision · page 6The Petition avers Dr. Powell's P&S report dated 8/31/2020 does not constitute substantial medical evidence contending his opinions are not based on any medical reports [Petition, p. 3, lines 19-20] Dr. Powell's 8/31/2020 P&S report indicates his opinions are based on having reviewed the history as provided by Applicant, physical examination findings, and the voluminous records reviewed. [App Ex 1, pp. 10&15] For the first time Petitioner seeks to present newly raised argument that Dr. Powell's 8/31/2020 report does not constitute substantial medical evidence because the report does not identify which reports he reviewed. As discussed supra, III.A.1. Dr. Powell is Applicant's PTP. As Applicants PTP, Dr. Powell has treated Applicant issuing progress reports and FRFA in regular intervals. Dr. Powell has also managed and coordinated Applicant's referrals for diagnostic studies, consultations and treatment authorization. While individual reports of Dr. Powell were not 8 offered into evidence based on Defendant's failure to properly and timely identify this as a contested issue, Panel QME Xeller summary of treatment reports submitted to him for review demonstrate Dr.

QMERejected · orthopedics

Dr. Xeller's opinions on permanent and stationary status and temporary disability were found unreliable and not substantial medical evidence due to incomplete evaluation and incorrect legal theory.

The panel found Dr. Xeller's opinions conclusory, premature, and based on incomplete history and inaccurate facts, thus not substantial medical evidence.

From the decision · page 8reviewed and summarized numerus medical records over the course of 5 years he served as the panel QME, and purportedly "evaluated" Applicant on at least 5 different occasions, issuing at least 6 reports, from this Court's evidentiary record and providing additional medical opinion by way of testimony during 1 deposition. Expert medical opinion, however, does not always constitute substantial evidence on which the board may rest its decision. Courts have held that the board may not rely on medical reports which it knows to be erroneous (McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 92) This Court the Petitions averment that Dr. Xeller's medical opinion 10 constitutes substantial medical evidence merely because he reviewed medical records and evaluated Applicant multiple time is misplaced rather than basing it on the substance of his reporting misplaced.

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, 928; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416-17, 419; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379

A medical opinion must be predicated on reasonable medical probability, based on pertinent facts, adequate examination and history, and set forth reasoning in support of conclusions to constitute substantial evidence.

The panel applied this standard to find Dr. Powell's opinions substantial medical evidence and to reject Dr. Xeller's opinions as not substantial.

From the decision · page 12For the reasons stated in the WCJ's report, we agree that the opinion of treating physician Lonnie Powell, D.C., is substantial medical evidence upon which the WCJ properly relied. 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.).) We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

What proof carried it

The evidence the panel weighed, by kind.

treatment coursefavours Applicant prevailed

Dr. Powell's treatment reports and progress reports signed jointly with Dr. Foxley

From the decision · page 5Powell's express representation that as Applicant's primary treater in this case, he has been asked to evaluate Applicant's subjective complaints of bilateral knee, bilateral shoulders, bilateral hands and spine pain in regard to the cumulative trauma claim from 11/9/2014 through 11/9/2015, and prepare a comprehensive P&S report. [App Ex 1, p. 10] The Petition also seeks to rely on Applicant Exhibit 6, various Primary Treating Physician Progress Reports (PR-2) with Request for Authorization dated 4/20/21, 3/16/21, 2/16/21, 1/19/2021, 12/15/20, 11/17/20, 10/20/20, 9/15/20, 8/18/20, 7/21/20, 6/16/20, 5/19/20, and 1/21/20, in support of its contention that Dr. Powell never treated Applicant. The medical reports are signed by both Dr. Foxley and Dr. Powell, with the box identifying Dr. Powell as the PTP, marked, rather than Dr. Foxley. Moreover, these reports are not exhaustive of treatment reports, but were offered by Applicant to prove Applicant's 7 need for medical treatment, which is why this Court allowed the reports of varying dates to be admitted into the evidentiary record as one exhibit, rather than marked for identification separately, and also why each PR-2 accompanies a corresponding RFA. Therefore, these reports fail to demonstrate that Dr. Powell never treated Applicant.

Medical recordsfavours Applicant prevailed

Dr. Xeller's failure to evaluate additional body parts beyond bilateral knees and incomplete evaluation

From the decision · page 8The Petition avers the Finding and Award misstates Dr. Xeller's finding on causation with this Court confusing Dr. Xeller's findings as to body parts. [Petition, p. 10, line 23- p. 11, line 2.] The Petition then appears to render an entirely different medical-legal opinion on Dr. Xeller's behalf explicating "Dr. Xeller does in fact find injury those additional body parts. However, Dr. Xeller indicates that there is very little medical record to substantiate injury to the additional body parts on an industrial basis and therefore finds industrial causation to the knees. (Defendant's Exhibit A)" [Petition, p. 10, line 23- p. 11, line 2.] The Petitions assertion as to Dr. Xeller's opinion is inaccurate. Dr. Xeller's initial report dated 5/24/2016, "Defendants Exhibit A" does not address the additional body parts. With injury to bilateral knees is not disputed, Dr. Xeller only evaluated Applicant's bilateral knees at the time of his initial evaluation 5/24/2016. When deposed on 5/10/2017, Dr. Xeller acknowledged he was not aware Applicant filed an Application alleging injury to the bilateral knees, bilateral hips, back and sleep as a result of pain. [Def Ex G, p. 9, lines 6- 15] However when Applicant retuned back for re-evaluation 7/24/2019 and 1/30/2020, Dr. Xeller still failed to evaluate the other body parts. Dr.

ADJ10540177 · April 25, 2022