What the panel ordered
Petition for Reconsideration is denied; the WCJ's Findings and Order are upheld to allow further discovery and evaluation regarding new and further disability claims, including psychological injury and MRI of right shoulder.
Defendant seeks reconsideration of the Findings and Order issued by the WCJ on May 15, 2024, challenging interlocutory findings and orders related to a Petition to Reopen for New and Further Disability.
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.
Further discovery and medical evidence, including MRI and psychological evaluation, are necessary to determine if new and further disability exists; defendant's challenge is premature.
From the decision · page 6The Findings and Orders in the decision issued on May 15, 2024, relate to (1) a finding allowing the Applicant to include psychological injury in the claim for new and further disability associated with the petition to reopen, and obtain medical-legal evidence to evaluate causation and need for treatment, as this claim is disputed; (2) a finding allowing the Applicant to obtain an MRI of the right shoulder and subsequently be re-evaluated with the current QME, Dr. Stone, to complete his findings as to the existence, if any, of new and further disability or need for treatment to the right shoulder and both knees. No finding regarding new and further disability has yet been determined, as additional evidence was found to be necessary in order to determine whether there is a basis to grant the Petition to Reopen, or whether it should be denied as without basis.
The WCJ found the Petition to Reopen was timely filed, a threshold jurisdictional issue, making the decision final and subject to reconsideration rather than removal.
From the decision · page 1The WCJ found, in relevant part, that applicant's Petition to Reopen was timely filed; that based on the determination provided in a report written by PQME Dr. Stone (PQME) an MRI of applicant's right shoulder is necessary, as well as a determination regarding further disability to the knees; that applicant shall be allowed to assert a claim for psychological injury within her Petition to Reopen, based on psychological symptoms reported by the PQME in his first report; and, that based on the PQME's determinations and request for an additional PQME in psychology to evaluate applicant, the parties should proceed to agree on an Agreed Medical Evaluator, or to request an additional QME, to evaluate applicant's psychological complaints, and to assess the date of onset, causation, and need for treatment. The WCJ ordered that: "the parties proceed with obtaining the MRI of the right shoulder as requested by PQME Dr. Stone and that the parties proceed with selection of either an AME, or request for an additional QME panel in the specialty of psychology to address the Applicant's symptoms, need for treatment and determine causation and the date this condition arose, as requested by PQME Dr. Stone."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Petition to Reopen was timely filed, establishing jurisdiction and making the WCJ's decision final.
Favours Applicant prevailed
This threshold finding allowed the WCJ's decision to be subject to reconsideration rather than removal, supporting denial of defendant's petition.
From the decision · page 1The WCJ found, in relevant part, that applicant's Petition to Reopen was timely filed; that based on the determination provided in a report written by PQME Dr. Stone (PQME) an MRI of applicant's right shoulder is necessary, as well as a determination regarding further disability to the knees; that applicant shall be allowed to assert a claim for psychological injury within her Petition to Reopen, based on psychological symptoms reported by the PQME in his first report; and, that based on the PQME's determinations and request for an additional PQME in psychology to evaluate applicant, the parties should proceed to agree on an Agreed Medical Evaluator, or to request an additional QME, to evaluate applicant's psychological complaints, and to assess the date of onset, causation, and need for treatment. The WCJ ordered that: "the parties proceed with obtaining the MRI of the right shoulder as requested by PQME Dr. Stone and that the parties proceed with selection of either an AME, or request for an additional QME panel in the specialty of psychology to address the Applicant's symptoms, need for treatment and determine causation and the date this condition arose, as requested by PQME Dr. Stone."
Dr. Stone's reports contain inconsistencies regarding impairment and need for further diagnostic testing (MRI) and psychological evaluation.
Favours Applicant prevailed
These inconsistencies necessitate further discovery to develop substantial medical evidence to determine new and further disability.
From the decision · page 6As the Defendants' Petition for Review of the Findings and Order involves the interlocutory findings and orders stemming from those findings, the standard of review for Removal is utilized for this Report & Recommendation. Removal is an extraordinary remedy, rarely exercised and the facts and circumstances in this case do not support that the Defendants will be significantly prejudiced or irreparably harmed due to the findings and order which issued on May 15, 2024. Defendants are correct that Dr. Stone repeatedly indicates that the Applicant remains permanent and stationary and he does not change his opinions regarding the level of permanent impairment regarding the applicant's injuries in multiple reports provided after the filing of the Petition to Reopen on May 28, 2021. However, these statements by Dr. Stone when compared with other statements in his reporting create inconsistencies which need to be clarified in order for the reports of Dr. Stone to be considered substantial medical evidence. For example, in the first report provided by Dr. Stone subsequent to the filing of the Petition to Re-open, dated August 20, 2021 (Exhibit J6, EAMS DOC ID 50429116), Dr. Stone states on page 21, regarding the AMA Impairment Rating, "My opinions are unchanged and not in dispute at this time." This statement of Dr.
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. Stone provided multiple reports indicating the need for further diagnostic testing (MRI of right shoulder) and evaluation of psychological symptoms to determine new and further disability and need for treatment. His reports contain some inconsistencies regarding impairment level, necessitating further evidence.
The WCJ relied on Dr. Stone's reports to order further discovery and evaluation to clarify inconsistencies and establish substantial medical evidence.
From the decision · page 6The Findings and Orders in the decision issued on May 15, 2024, relate to (1) a finding allowing the Applicant to include psychological injury in the claim for new and further disability associated with the petition to reopen, and obtain medical-legal evidence to evaluate causation and need for treatment, as this claim is disputed; (2) a finding allowing the Applicant to obtain an MRI of the right shoulder and subsequently be re-evaluated with the current QME, Dr. Stone, to complete his findings as to the existence, if any, of new and further disability or need for treatment to the right shoulder and both knees. No finding regarding new and further disability has yet been determined, as additional evidence was found to be necessary in order to determine whether there is a basis to grant the Petition to Reopen, or whether it should be denied as without basis.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 5410; Labor Code Section 5804
Petition to Reopen must be timely filed to be considered; threshold jurisdictional issue.
The WCJ found the Petition to Reopen was timely filed, making the decision final and subject to reconsideration rather than removal.
From the decision · page 1The WCJ found, in relevant part, that applicant's Petition to Reopen was timely filed; that based on the determination provided in a report written by PQME Dr. Stone (PQME) an MRI of applicant's right shoulder is necessary, as well as a determination regarding further disability to the knees; that applicant shall be allowed to assert a claim for psychological injury within her Petition to Reopen, based on psychological symptoms reported by the PQME in his first report; and, that based on the PQME's determinations and request for an additional PQME in psychology to evaluate applicant, the parties should proceed to agree on an Agreed Medical Evaluator, or to request an additional QME, to evaluate applicant's psychological complaints, and to assess the date of onset, causation, and need for treatment. The WCJ ordered that: "the parties proceed with obtaining the MRI of the right shoulder as requested by PQME Dr. Stone and that the parties proceed with selection of either an AME, or request for an additional QME panel in the specialty of psychology to address the Applicant's symptoms, need for treatment and determine causation and the date this condition arose, as requested by PQME Dr. Stone."
Labor Code Section 4620
Medical-legal evidence and diagnostic testing are required to prove or disprove contested claims of new and further disability.
Further discovery including MRI and psychological evaluation was ordered to develop substantial medical evidence for the Petition to Reopen.
From the decision · page 8must be thorough review of the medical evidence by the QME, to obtain reporting that constitutes substantial medical evidence. Labor Code § 4620 provides for obtaining medical-legal evidence and diagnostic testing to prove or disprove a contested claim. The evidence is needed to prove Defendants' position as well as Applicant's,and resolve the dispute regarding whether there is additional permanent impairment or need for treatment.
What proof carried it
The evidence the panel weighed, by kind.
Inconsistent statements by Dr. Stone regarding impairment level and need for further diagnostic testing and evaluation.
From the decision · page 6As the Defendants' Petition for Review of the Findings and Order involves the interlocutory findings and orders stemming from those findings, the standard of review for Removal is utilized for this Report & Recommendation. Removal is an extraordinary remedy, rarely exercised and the facts and circumstances in this case do not support that the Defendants will be significantly prejudiced or irreparably harmed due to the findings and order which issued on May 15, 2024. Defendants are correct that Dr. Stone repeatedly indicates that the Applicant remains permanent and stationary and he does not change his opinions regarding the level of permanent impairment regarding the applicant's injuries in multiple reports provided after the filing of the Petition to Reopen on May 28, 2021. However, these statements by Dr. Stone when compared with other statements in his reporting create inconsistencies which need to be clarified in order for the reports of Dr. Stone to be considered substantial medical evidence. For example, in the first report provided by Dr. Stone subsequent to the filing of the Petition to Re-open, dated August 20, 2021 (Exhibit J6, EAMS DOC ID 50429116), Dr. Stone states on page 21, regarding the AMA Impairment Rating, "My opinions are unchanged and not in dispute at this time." This statement of Dr.
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