ADJ11076763 · September 27, 2024

The Appeals Board deferred the issue of fibromyalgia rating and compensability for further development of the record, noting the need to assess substantiality of medical evidence.

From the decision · page 9(1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93] (italics added); Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) Following development of the record, the parties may wish to specifically frame and submit the issue of the substantiality of the reporting, including the reporting in the field of rheumatology.

The Appeals Board found the AME's opinion on adding versus combining impairments was not adequately reasoned and required further development of the record to address the proper methodology under Vigil and AMA Guides.

From the decision · page 8Following our independent review of the record, we believe that the AME reporting should be developed to address our holdings in Vigil, supra, as relevant to the issue of the methodology by which the various impairments are added or combined. In addition, and pursuant to our discussion in Vigil that medical reporting "must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions," the AME should specifically address his reasoning as to the most accurate way of combining applicant's various impairments.

The AME's opinion on adding impairments rather than combining was conclusory and lacked detailed reasoning as required by Vigil and Escobedo standards.

Favours Applicant prevailed

This led the Appeals Board to grant reconsideration, rescind the permanent disability award, and remand for further development.

From the decision · page 8Following our independent review of the record, we believe that the AME reporting should be developed to address our holdings in Vigil, supra, as relevant to the issue of the methodology by which the various impairments are added or combined. In addition, and pursuant to our discussion in Vigil that medical reporting "must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions," the AME should specifically address his reasoning as to the most accurate way of combining applicant's various impairments.

The medical evidence regarding fibromyalgia reports was challenged for substantiality and relevance, leading to deferral of the issue.

Favours Defendant prevailed

The Appeals Board deferred the fibromyalgia rating and compensability issue for further record development.

From the decision · page 9(1968) 69 Cal.2d 408, 413 [33 Cal.Comp.Cases 660].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93] (italics added); Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].) Following development of the record, the parties may wish to specifically frame and submit the issue of the substantiality of the reporting, including the reporting in the field of rheumatology.

Rated spinal disability using ROM methodology and opined that cervical and lumbar spine impairments should be added before combining with other body parts.

The AME's opinion on adding impairments rather than combining was challenged as conclusory and requiring further explanation under Vigil standards.

From the decision · page 2On May 9, 2024, the WCJ ordered the matter submitted for decision. On June 26, 2024, the WCJ issued his F&A, determining in relevant part that applicant's injuries resulted in 88 percent permanent disability. The Opinion on Decision explained that the WCJ relied on the opinions of AME Dr. Newton, which rated applicant's spinal disability using a ROM methodology. Additionally, Dr. Newton opined that the most accurate rating of applicant's disability would require adding the cervical and lumbar spine impairments before combining the resulting disability with other body parts. (Opinion on Decision, at p. 2.)

Provided a 2021 report relevant to fibromyalgia condition, challenged for substantiality but not resolved in this decision.

Defendant contended the 2021 report was more accurate but no specific argument was made; issue deferred for further development.

From the decision · page 9Finally, we acknowledge defendant's contention that the WCJ erred in relying on the 2018 reporting of Dr. Salick because the 2021 reporting of Dr. Silverman more accurately reflects applicant's current condition. (Petition, at p. 3:19.) We note, however, that other than the passage of time, defendant's Petition does not offer any specific argument as to why either of the reports more accurately reflects applicant's current condition. Because we are returning this matter to the trial level for development of the record regarding permanent disability, we do not reach a determination on the issue. However, we remind the parties that the question is appropriately analyzed as an issue of substantiality. In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. Appeals Bd.

Provided earlier 2018 report on fibromyalgia, challenged as no longer germane but issue deferred.

Defendant challenged the 2018 report's relevance; issue deferred for further development.

From the decision · page 9Finally, we acknowledge defendant's contention that the WCJ erred in relying on the 2018 reporting of Dr. Salick because the 2021 reporting of Dr. Silverman more accurately reflects applicant's current condition. (Petition, at p. 3:19.) We note, however, that other than the passage of time, defendant's Petition does not offer any specific argument as to why either of the reports more accurately reflects applicant's current condition. Because we are returning this matter to the trial level for development of the record regarding permanent disability, we do not reach a determination on the issue. However, we remind the parties that the question is appropriately analyzed as an issue of substantiality. In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. Appeals Bd.

Permanent Disability Rating Schedule (PDRS) and AMA Guides allow deviation from strict combination of impairments when supported by reasoned medical opinion.

The Appeals Board required the AME to provide a reasoned analysis under these standards to support addition versus combination of impairments.

From the decision · page 4Pursuant to section 4660, the Permanent Disability Rating Schedule (PDRS) is prima facie evidence of an injured employee's permanent disability. (Lab. Code, § 4660; cf. Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1274§ 1277 [76 Cal.Comp.Cases 624] (Ogilvie).) The PDRS provides that the ratings for multiple body parts arising out of the same injury are "generally" combined using the Combined Values Chart (CVC), which is appended to

McAllister v. Workmen's Comp. Appeals Bd.; Hegglin v. Workmen's Comp. Appeals Bd.; Place v. Workmen's Comp. Appeals Bd.

Medical opinion must be based on reasonable medical probability, not speculation, and supported by pertinent facts and adequate examination.

The Appeals Board deferred the fibromyalgia issue pending further development to assess substantiality of medical evidence under these standards.

From the decision · page 9Finally, we acknowledge defendant's contention that the WCJ erred in relying on the 2018 reporting of Dr. Salick because the 2021 reporting of Dr. Silverman more accurately reflects applicant's current condition. (Petition, at p. 3:19.) We note, however, that other than the passage of time, defendant's Petition does not offer any specific argument as to why either of the reports more accurately reflects applicant's current condition. Because we are returning this matter to the trial level for development of the record regarding permanent disability, we do not reach a determination on the issue. However, we remind the parties that the question is appropriately analyzed as an issue of substantiality. In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. Appeals Bd.

The AME's opinion lacked detailed reasoning on addition versus combination of impairments as required by Vigil and Escobedo standards.

From the decision · page 8Following our independent review of the record, we believe that the AME reporting should be developed to address our holdings in Vigil, supra, as relevant to the issue of the methodology by which the various impairments are added or combined. In addition, and pursuant to our discussion in Vigil that medical reporting "must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions," the AME should specifically address his reasoning as to the most accurate way of combining applicant's various impairments.

Defendant challenged the substantiality of the 2018 and 2021 rheumatology reports regarding fibromyalgia.

From the decision · page 9Finally, we acknowledge defendant's contention that the WCJ erred in relying on the 2018 reporting of Dr. Salick because the 2021 reporting of Dr. Silverman more accurately reflects applicant's current condition. (Petition, at p. 3:19.) We note, however, that other than the passage of time, defendant's Petition does not offer any specific argument as to why either of the reports more accurately reflects applicant's current condition. Because we are returning this matter to the trial level for development of the record regarding permanent disability, we do not reach a determination on the issue. However, we remind the parties that the question is appropriately analyzed as an issue of substantiality. In order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. Appeals Bd.