ADJ10767199 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration of the Joint Findings and Orders issued by the WCJ on February 1, 2022, denied by the WCAB panel on April 18, 2022.

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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.

LiensDefendant prevailedcumulative trauma · back · lower extremity

Lien Claimant did not meet burden of proof for injury AOE/COE; reports by Dr. Shen lacked reasoning and pertinent facts, thus not substantial evidence.

From the decision · page 3Having reviewed each of Dr. Shen's reports, it is clear that although he repeated his conclusion that applicant's condition was "consistent with over 25 years of cumulative trauma," in none of his reports did he explain his reasoning or analysis for reaching his conclusion. It is also important to note that in none of his reports did Dr. Shen indicate that he had reviewed applicant's medical record and it appears that he was not aware that applicant had not worked for Tawa since December 17, 2016. Dr. Shen's opinions are not based on pertinent facts, nor are they based on an adequate medical history, and none of the reports set forth the reasoning behind his opinions. Thus, his reports are not substantial evidence upon which a finding of cumulative injury, AOE/COE can be based. Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury AOE/COE. "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]).

The facts that decided it

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

Dr. Shen's reports lacked reasoning and did not review pertinent facts such as applicant's employment termination date.

Favours Defendant prevailed

Reports were not substantial evidence to prove injury AOE/COE.

From the decision · page 3Having reviewed each of Dr. Shen's reports, it is clear that although he repeated his conclusion that applicant's condition was "consistent with over 25 years of cumulative trauma," in none of his reports did he explain his reasoning or analysis for reaching his conclusion. It is also important to note that in none of his reports did Dr. Shen indicate that he had reviewed applicant's medical record and it appears that he was not aware that applicant had not worked for Tawa since December 17, 2016. Dr. Shen's opinions are not based on pertinent facts, nor are they based on an adequate medical history, and none of the reports set forth the reasoning behind his opinions. Thus, his reports are not substantial evidence upon which a finding of cumulative injury, AOE/COE can be based. Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury AOE/COE. "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]).

No evidence applicant objected to Dr. Berg's release from care or complied with Labor Code dispute procedures.

Favours Defendant prevailed

Applicant not entitled to further medical treatment for 2008 injury.

From the decision · page 4If the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code sections 4060, 4061 4062, 4600.5, 4616.3, or 4616.4.... (Cal. Code Regs., tit. 8, § 9785(b)(3).) Here, the record contains no evidence that at any time applicant objected to Dr. Berg's determination that he needed no more medical treatment and was released from care. In the C&R applicant stipulated that he was working his usual and customary duties up to the termination of his employment and the trial record does not include any evidence that he sought medical treatment until he was seen by Dr. Shen on January 18, 2017. Absent a timely objection to Dr. Berg's determination that applicant needed no further medical treatment, and absent any evidence that applicant complied with the Labor Code sections referred to in AD rule 9785(b)(3), quoted above, applicant is not entitled to medical treatment for the August 7, 2008 injury. We also note that since applicant did not seek treatment for approximately eight years after his last treatment by Dr. Berg, there is no evidence that the treatment provided by Lien Claimant was actually for symptoms that were a result of the 2008 injury. Accordingly, we will deny reconsideration.

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.

otherRejected

Concluded applicant's condition was consistent with over 25 years of cumulative trauma but did not explain reasoning or review pertinent facts such as applicant's employment termination date.

Reports lacked reasoning and pertinent facts; not substantial evidence for injury AOE/COE.

From the decision · page 3Having reviewed each of Dr. Shen's reports, it is clear that although he repeated his conclusion that applicant's condition was "consistent with over 25 years of cumulative trauma," in none of his reports did he explain his reasoning or analysis for reaching his conclusion. It is also important to note that in none of his reports did Dr. Shen indicate that he had reviewed applicant's medical record and it appears that he was not aware that applicant had not worked for Tawa since December 17, 2016. Dr. Shen's opinions are not based on pertinent facts, nor are they based on an adequate medical history, and none of the reports set forth the reasoning behind his opinions. Thus, his reports are not substantial evidence upon which a finding of cumulative injury, AOE/COE can be based. Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury AOE/COE. "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]).

PTPRelied upon

Released applicant with no need for further treatment and no permanent disability factors for the August 7, 2008 injury.

No evidence applicant objected to release or complied with dispute procedures; no entitlement to further treatment.

From the decision · page 4Regarding treatment for applicant's August 7, 2008 injury, applicant received treatment from Emmett A. Berg, D.O., for his lumbosacral sprain/sciatica injury and he was released with no need for further treatment on September 3, 2008. (Def. Exh. A, Dr. Berg, September 3, 2008.) In his report Dr. Berg stated that applicant had no "factors of permanent disability" and that applicant could "return to work with no limitations." (Def. Exh. A, p. 2.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399

A medical opinion must be based on pertinent facts and an adequate examination and history, and must set forth reasoning behind the opinion; a mere legal conclusion is insufficient.

Dr. Shen's reports lacked reasoning and pertinent facts, thus not substantial evidence for injury AOE/COE.

From the decision · page 2It has long been the law that in order to constitute substantial evidence, a medical opinion must be based on pertinent facts and on an adequate examination and history, and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp. Cases 604 (Appeals Board en banc).)

Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204

Lien Claimant has the burden of proving by a preponderance of the evidence that the claim is industrial.

Lien Claimant did not meet burden of proof for injury AOE/COE.

From the decision · page 3Having reviewed each of Dr. Shen's reports, it is clear that although he repeated his conclusion that applicant's condition was "consistent with over 25 years of cumulative trauma," in none of his reports did he explain his reasoning or analysis for reaching his conclusion. It is also important to note that in none of his reports did Dr. Shen indicate that he had reviewed applicant's medical record and it appears that he was not aware that applicant had not worked for Tawa since December 17, 2016. Dr. Shen's opinions are not based on pertinent facts, nor are they based on an adequate medical history, and none of the reports set forth the reasoning behind his opinions. Thus, his reports are not substantial evidence upon which a finding of cumulative injury, AOE/COE can be based. Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury AOE/COE. "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]).

Cal. Code Regs., tit. 8, 9785(b)(3)

If the employee disputes a medical determination by the primary treating physician, including release from care, the dispute shall be resolved under Labor Code sections 4060, 4061, 4062, 4600.5, 4616.3, or 4616.4.

No evidence applicant objected to Dr. Berg's release or complied with dispute procedures; no entitlement to further treatment.

From the decision · page 4If the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code sections 4060, 4061 4062, 4600.5, 4616.3, or 4616.4.... (Cal. Code Regs., tit. 8, § 9785(b)(3).) Here, the record contains no evidence that at any time applicant objected to Dr. Berg's determination that he needed no more medical treatment and was released from care. In the C&R applicant stipulated that he was working his usual and customary duties up to the termination of his employment and the trial record does not include any evidence that he sought medical treatment until he was seen by Dr. Shen on January 18, 2017. Absent a timely objection to Dr. Berg's determination that applicant needed no further medical treatment, and absent any evidence that applicant complied with the Labor Code sections referred to in AD rule 9785(b)(3), quoted above, applicant is not entitled to medical treatment for the August 7, 2008 injury. We also note that since applicant did not seek treatment for approximately eight years after his last treatment by Dr. Berg, there is no evidence that the treatment provided by Lien Claimant was actually for symptoms that were a result of the 2008 injury. Accordingly, we will deny reconsideration.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Shen's reports lacked explanation and did not review pertinent facts such as applicant's employment termination date.

From the decision · page 3Having reviewed each of Dr. Shen's reports, it is clear that although he repeated his conclusion that applicant's condition was "consistent with over 25 years of cumulative trauma," in none of his reports did he explain his reasoning or analysis for reaching his conclusion. It is also important to note that in none of his reports did Dr. Shen indicate that he had reviewed applicant's medical record and it appears that he was not aware that applicant had not worked for Tawa since December 17, 2016. Dr. Shen's opinions are not based on pertinent facts, nor are they based on an adequate medical history, and none of the reports set forth the reasoning behind his opinions. Thus, his reports are not substantial evidence upon which a finding of cumulative injury, AOE/COE can be based. Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury AOE/COE. "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]).

treatment coursefavours Defendant prevailed