ADJ10839374 · March 3, 2023

The applicant's claim period predates January 1, 2005, so pre-SB 899 section 4062 applies, and the QME reports are admissible. The reports of Drs. Einbund and Nudleman are substantial evidence except as to the P&S date prior to 2018.

From the decision · page 17Based on the above, the undersigned Judge was not in error in admitting the reports of Applicant's Qualified Medical Examiners Dr. Prakash Jay, Dr. Einbund, Dr. Kenneth Nudleman, and Dr. Michael Wells, and the defendant's Petition for Reconsideration should be denied.

The record supports apportionment of 70% of left knee permanent disability and 100% of right knee permanent disability to industrial causes, as clarified in the amended F&A.

From the decision · page 5Accordingly, we amend the F&A as follows: 70% of the applicant's permanent disability for his left knee is a result of his employment as a professional hockey player. Otherwise, we affirm the F&A.

The earliest date supported by substantial medical evidence for permanent and stationary status is March 21, 2018, as no medical records prior to 2018 were reviewed by the QMEs, making earlier opinions speculative.

From the decision · page 5There is no evidence before us that applicant received temporary disability indemnity payments prior to the permanent and stationary date of March 21, 2018. Thus, we concur with the WCJ that applicant's permanent disability indemnity payments should be calculated from March 21, 2018, the date upon which applicant's permanent and stationary determination is supported by substantial medical evidence. (Lab. Code, § 4650(b)(2); Brower supra, at 558-559, 561, fn. 9.)

No medical records or reports from prior to 2018 were reviewed by QMEs, so opinions on P&S date prior to 2018 were speculative and not substantial evidence.

Favours Defendant prevailed

This fact led to the finding that permanent disability indemnity payments should commence as of March 21, 2018, not earlier.

From the decision · page 3Applicant's orthopedic QME Dr. Einbund performed a physical examination of applicant, reviewed medical records and numerous radiology reports, and took a detailed history. Dr. Einbund opined that applicant "became permanent and stationary approximately three months following his retirement from professional hockey" in approximately October 1980. (Ex. 1, Dr. Einbund's March 21, 2018, report, p. 17.) However, the earliest medical records reviewed by Dr. Einbund were diagnostic studies from 2018. (Ex. 1, Report of QME Michael Einbund, M.D., dated March 21, 2018, pp. 13-16.3) Because Dr. Einbund did not review medical records or reports from prior to 2018, his opinion that applicant was permanent and stationary in 1981 is based on speculation and conjecture and therefore is not substantial medical evidence. (Emphasis added; Escobedo, supra, at 621; see also Hegglin, supra; Place, supra; Zemke, supra.)

Applicant continued to work until 2018 and had no injuries at subsequent employers.

Favours Defendant prevailed

Supported the finding that applicant was not permanently disabled prior to 2018.

From the decision · page 9After retirement the applicant worked for the Walker Group and in 1984 he started working for Coldwell Banker. He testified that he had no injuries while working for Coldwell Banker.9 Subsequent to Coldwell Banker the applicant worked for Implied Consultants and then again for Coldwell Banker until 2018 when he resigned [due] to an inability to show properties.10

Applicant's claim period was before January 1, 2005, so pre-SB 899 section 4062 applied to admissibility of QME reports.

Favours Applicant prevailed

Allowed the QME reports to be admitted and considered substantial evidence except as to P&S date prior to 2018.

From the decision · page 17The Undersigned Judge's finding of the applicant's date of injury pursuant to Labor Code Section 5412 is not controlling in determining the process that applies to an applicant's claim. In the matter at hand, the applicant filed a claim of injury for the period of September 30, 1968 through October 15, 1980. As the claim of injury is before January 1, 2005, section 4062, as it existed before its amendment by SB 899, provides the procedure by which medical-legal reports are to be obtained.

Opined applicant became permanent and stationary approximately three months after retirement in 1980, but this was not based on review of records prior to 2018 and was found speculative. His other opinions were found substantial evidence.

Opinion on P&S date prior to 2018 was not substantial evidence due to lack of review of pre-2018 records; other opinions were substantial evidence.

From the decision · page 3Applicant's orthopedic QME Dr. Einbund performed a physical examination of applicant, reviewed medical records and numerous radiology reports, and took a detailed history. Dr. Einbund opined that applicant "became permanent and stationary approximately three months following his retirement from professional hockey" in approximately October 1980. (Ex. 1, Dr. Einbund's March 21, 2018, report, p. 17.) However, the earliest medical records reviewed by Dr. Einbund were diagnostic studies from 2018. (Ex. 1, Report of QME Michael Einbund, M.D., dated March 21, 2018, pp. 13-16.3) Because Dr. Einbund did not review medical records or reports from prior to 2018, his opinion that applicant was permanent and stationary in 1981 is based on speculation and conjecture and therefore is not substantial medical evidence. (Emphasis added; Escobedo, supra, at 621; see also Hegglin, supra; Place, supra; Zemke, supra.)

Opined applicant could be considered permanent and stationary in 1982, but did not review records prior to 2018, so opinion on P&S date was speculative and not substantial evidence.

Opinion on P&S date prior to 2018 was not substantial evidence due to lack of review of pre-2018 records.

From the decision · page 4March 7, 2020, report.) Dr. Fleming opined that applicant can be considered permanent and stationary in approximately 1982. (Ex. B, Dr. Fleming's June 10, 2019, report, p. 25; Ex. C, Dr. Fleming's March 7, 2020 report, p. 15.) However, as Dr. Fleming did not review records or reports from prior to 2018, his opinion that applicant was permanent and stationary in approximately 1982 is based on speculation and conjecture. (Ex. B, Dr. Fleming's June 10, 2019, report, pp. 10-22, 25; Ex. C, Dr. Fleming's March 7, 2020 report, pp. 1-9, 15.) Accordingly, Dr. Fleming's opinion that applicant became permanent and stationary in 1982 is not substantial medical evidence. (Emphasis added; Escobedo, supra, at 621; see also Hegglin, supra; Place, supra; Zemke, supra.)

Report found to be substantial evidence despite minor deficiencies in history reporting; did not defer conclusions pending brain MRI.

Report found to be substantial evidence; minor deficiencies did not result in fatal flaw.

From the decision · page 20As discussed above, no medical reporting of other evidence suggests that the inconsequential deficiencies in the history reporting by the applicant's qualified medical examiners resulted in a fatal flaw in the doctor's opinions. As such, Dr. Nudleman's report is substantial evidence.

Lab. Code, § 4650(b)(2)

Section 4650(b)(2) provides that permanent disability indemnity is calculated from the last date for which temporary disability indemnity was paid, or the date the employee's disability became permanent and stationary, whichever is earlier.

Applied to determine the start date for permanent disability indemnity payments.

From the decision · page 5Section 4650 provides for the coordination of temporary disability indemnity payments and permanent disability indemnity payments. Section 4650(b)(1) provides that if "the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability indemnity, except as provided in paragraph (2)...." (Lab. Code, § 4650(b)(1).) Relevant here, section 4650(b)(2) provides that "... when an award of permanent disability indemnity is made, the amount then due shall be calculated from the last date for which temporary disability indemnity was paid, or the date the employee's disability became permanent and stationary, whichever is earlier." (Lab. Code, § 4650(b)(2), emphasis added; Brower v. David Jones Constr. (2014) 79 Cal.Comp.Cases 550, 561, fn. 9.)

Lab. Code, § 4062 (pre-SB 899)

For injuries claimed to have occurred prior to January 1, 2005, section 4062, as it existed before its amendment by SB 899, provides the procedure by which medical-legal reports are to be obtained.

Applied to admit QME reports for pre-2005 injury period.

From the decision · page 17The Undersigned Judge's finding of the applicant's date of injury pursuant to Labor Code Section 5412 is not controlling in determining the process that applies to an applicant's claim. In the matter at hand, the applicant filed a claim of injury for the period of September 30, 1968 through October 15, 1980. As the claim of injury is before January 1, 2005, section 4062, as it existed before its amendment by SB 899, provides the procedure by which medical-legal reports are to be obtained.

No medical records or reports from prior to 2018 were reviewed by QMEs, making opinions on P&S date prior to 2018 speculative.

From the decision · page 3Applicant's orthopedic QME Dr. Einbund performed a physical examination of applicant, reviewed medical records and numerous radiology reports, and took a detailed history. Dr. Einbund opined that applicant "became permanent and stationary approximately three months following his retirement from professional hockey" in approximately October 1980. (Ex. 1, Dr. Einbund's March 21, 2018, report, p. 17.) However, the earliest medical records reviewed by Dr. Einbund were diagnostic studies from 2018. (Ex. 1, Report of QME Michael Einbund, M.D., dated March 21, 2018, pp. 13-16.3) Because Dr. Einbund did not review medical records or reports from prior to 2018, his opinion that applicant was permanent and stationary in 1981 is based on speculation and conjecture and therefore is not substantial medical evidence. (Emphasis added; Escobedo, supra, at 621; see also Hegglin, supra; Place, supra; Zemke, supra.)

Applicant continued to work until 2018 and had no injuries at subsequent employers, supporting lack of disability prior to 2018.

From the decision · page 9After retirement the applicant worked for the Walker Group and in 1984 he started working for Coldwell Banker. He testified that he had no injuries while working for Coldwell Banker.9 Subsequent to Coldwell Banker the applicant worked for Implied Consultants and then again for Coldwell Banker until 2018 when he resigned [due] to an inability to show properties.10