ADJ11764709 · March 1, 2022

The issue of injury AOE/COE in case ADJ11764682 was deferred for further development due to insufficient evidence.

From the decision · page 10(2) the applicant, claims industrial injury while employed on September 5, 2018, in case number ADJ11764682, as a Child Custody Recommending Counselor, in San Bernardino, California, by Superior Court of California, County of San Bernardino, who was permissibly self-insured and whose workers' compensation insurance administrator was Acclamation-Sacramento. The issue of injury AOE/COE is deferred.

The issue of injury to other body parts was deferred for further development due to insufficient evidence.

From the decision · page 9Accordingly, as our decision after reconsideration, we rescind the F&O and substitute a new F&O, which defers the issue of whether applicant sustained a psychiatric injury and to other body parts in case number ADJ11764709 (Finding of Fact 1) and the issue of whether applicant sustained injury in case number ADJ11764709 (Finding of Fact 2); finds that based on the record, defendant did not meet its burden under Labor Code section 3208.3(h) to show that compensation was barred; defers all other issues; and orders further development of the record per the orders of the WCJ. We return the matter to the WCJ for further proceedings consistent with this opinion.

The WCAB found the record insufficient to determine injury AOE/COE and deferred the issue for further development, rejecting the substantiality of QME Ghannam's and treating psychologists' reports as evidence.

From the decision · page 9Accordingly, as our decision after reconsideration, we rescind the F&O and substitute a new F&O, which defers the issue of whether applicant sustained a psychiatric injury and to other body parts in case number ADJ11764709 (Finding of Fact 1) and the issue of whether applicant sustained injury in case number ADJ11764709 (Finding of Fact 2); finds that based on the record, defendant did not meet its burden under Labor Code section 3208.3(h) to show that compensation was barred; defers all other issues; and orders further development of the record per the orders of the WCJ. We return the matter to the WCJ for further proceedings consistent with this opinion.

Dr. Ghannam's reports and deposition testimony were inconsistent and lacked substantial evidence on injury AOE/COE, leading to rejection of his opinions.

Favours Defendant prevailed

The WCAB found Dr. Ghannam's opinions unreliable and insufficient to support a finding of injury AOE/COE.

From the decision · page 7As stated by the WCJ in the Opinion on Decision, in his initial report, it appears that Dr. Ghannam described applicant as having a cumulative psychiatric injury, predominately caused by her work. (App. Exh. 3, pp. 5 - 6.) He subsequently testified that the cause of applicant's psychiatric injury was:

Reports from Dr. Silverstein and Dr. Frazier lacked review of prior psychiatric treatment records, undermining their substantiality as evidence on injury AOE/COE.

Favours Defendant prevailed

The WCAB majority found these reports insufficient to establish injury AOE/COE due to incomplete medical history.

From the decision · page 8Further, our review of the record indicates that Dr. Silverstein and Dr. Frasier were not provided the extensive medical records regarding the psychiatric/psychological treatment that applicant received prior to her employment with defendant. The reports from Dr. Silverstein and Dr. Frasier do not include the review or the doctors' consideration of applicant's prior symptoms and treatment. When a medical examiner or a treating physician is not provided relevant medical records, the report generated by that doctor is not likely to comply with the standard for substantial medical evidence i.e. a report that is based on an inadequate medical history is not substantial evidence (Place v. Workmen's Comp. Appeals Bd., supra; Hegglin v. Workmen's Comp. Appeals Bd., supra.) Thus, the reports from Dr. Silverstein and Dr. Frasier are not substantial evidence as to the issue of injury AOE/COE and may not be the basis for a finding of industrial injury.

Initially opined applicant sustained cumulative psychiatric injury AOE/COE with predominant industrial causation; later testimony inconsistent and lacking substantiality; did not properly apportion injury components as required.

The WCAB found Dr. Ghannam's reports and deposition testimony inconsistent with applicant's testimony and his initial report, lacking substantial evidence on injury AOE/COE, and flawed understanding of cumulative trauma versus specific injury.

From the decision · page 7As stated by the WCJ in the Opinion on Decision, in his initial report, it appears that Dr. Ghannam described applicant as having a cumulative psychiatric injury, predominately caused by her work. (App. Exh. 3, pp. 5 - 6.) He subsequently testified that the cause of applicant's psychiatric injury was:

Diagnosed depressive disorder; opined applicant sustained cumulative psychiatric injury AOE/COE based on examination and history; reports constitute substantial evidence.

The WCAB dissent found Dr. Frazier's opinions based on adequate examination and history, constituting substantial evidence of cumulative psychiatric injury AOE/COE.

From the decision · page 2Applicant was initially seen by treating psychologist Dr. Frazier on September 21, 2018. (App. Exh. 4-C, L. Scott Frazier, Ph.D., October 19, 2018.) In the report Dr. Frazier noted that applicant's description of her work for defendant included:

Reports not substantial evidence due to lack of review of prior psychiatric treatment records.

The WCAB majority found Dr. Silverstein's reports lacked substantial evidence as they did not consider applicant's prior psychiatric treatment records.

From the decision · page 7However, we must note that, whether a report, or deposition testimony, is substantial evidence is a determination regarding the weight of the evidence, not its admissibility. (Lab. Code, § 4628, Cal. Code Regs., tit. 8, § 10862(c); Gaytan v. Workers' Comp. Appeals Bd., (2003) 109 Cal. App. 4th 200, 213 [68 Cal.Comp.Cases 693]; see also Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658, 43 Cal.Rptr.3d 434.) Thus, Dr. Ghannam's reports and deposition transcripts may remain in the trial record. Upon return, the WCJ continues to have the option to consider the issue of the opinions of Dr. Ghannam in relation to Labor Code section 139.2(d)(2).

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

A medical opinion must be based on pertinent facts, adequate examination and accurate history, and must set forth the basis and reasoning in support of conclusions to be substantial evidence.

Applied to evaluate the substantiality of medical opinions in this case.

From the decision · page 7To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and the reasoning in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) 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. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].)

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

A medical opinion is not substantial evidence if based on facts no longer germane, inadequate histories or examinations, incorrect legal theories, or speculation.

Applied to reject medical opinions lacking substantial evidence due to inadequate history or examination.

From the decision · page 7To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and the reasoning in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) 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. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to further develop the record where evidence is insufficient to determine an issue.

Applied to order further development of the record in this case.

From the decision · page 8Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to further develop the record where there is insufficient evidence to determine an issue that was submitted for decision. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].)

Dr. Ghannam's reports and deposition testimony were inconsistent with applicant's testimony and initial report, lacking substantial evidence on injury AOE/COE.

From the decision · page 7As stated by the WCJ in the Opinion on Decision, in his initial report, it appears that Dr. Ghannam described applicant as having a cumulative psychiatric injury, predominately caused by her work. (App. Exh. 3, pp. 5 - 6.) He subsequently testified that the cause of applicant's psychiatric injury was:

Dr. Silverstein and Dr. Frazier's reports lacked review of prior psychiatric treatment records, undermining their substantiality as evidence.

From the decision · page 8Further, our review of the record indicates that Dr. Silverstein and Dr. Frasier were not provided the extensive medical records regarding the psychiatric/psychological treatment that applicant received prior to her employment with defendant. The reports from Dr. Silverstein and Dr. Frasier do not include the review or the doctors' consideration of applicant's prior symptoms and treatment. When a medical examiner or a treating physician is not provided relevant medical records, the report generated by that doctor is not likely to comply with the standard for substantial medical evidence i.e. a report that is based on an inadequate medical history is not substantial evidence (Place v. Workmen's Comp. Appeals Bd., supra; Hegglin v. Workmen's Comp. Appeals Bd., supra.) Thus, the reports from Dr. Silverstein and Dr. Frasier are not substantial evidence as to the issue of injury AOE/COE and may not be the basis for a finding of industrial injury.