ADJ11919641 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision after reconsideration deferred pending further review.

Applicant filed a Petition for Reconsideration of the January 22, 2024 WCJ decision; the WCJ recommended denial; the Appeals Board granted reconsideration and deferred final decision pending further review.

Read the official decision →

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.

Permanent disability ratingDefendant prevailedhead · psyche · hearing · dental · closed head brain injury · MTBI · stroke · eyes · vision

The WCJ found 67% permanent disability after apportionment; the applicant failed to rebut the permanent disability rating schedule; the vocational consultant's opinion was rejected for lack of valid apportionment analysis.

From the decision · page 1Applicant seeks reconsideration of the January 22 2024 First Amended Findings, Award and Order wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained admitted industrial injury to his head, psyche, hearing, dental, closed head brain injury, MTBI, stroke, eyes and vision while employed as a commercial truck driver on July 12, 2018; that applicant did not sustain industrial injury in the form of sleep apnea; that the injury herein caused 67% permanent disability; and that applicant failed to meet his burden of proof that he rebutted the permanent disability rating schedule or establish 100% permanent disability. Pursuant to our authority, we accept applicant's supplemental pleading. (Cal. Code Regs., tit. 8, § 10964.)

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.

QMERejected · neurology

Authored several reports on the applicant's neurological condition and apportionment.

The WCJ found Dr. Siavoshi's apportionment opinion did not constitute substantial medical evidence.

From the decision · page 1Applicant seeks reconsideration of the January 22 2024 First Amended Findings, Award and Order wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained admitted industrial injury to his head, psyche, hearing, dental, closed head brain injury, MTBI, stroke, eyes and vision while employed as a commercial truck driver on July 12, 2018; that applicant did not sustain industrial injury in the form of sleep apnea; that the injury herein caused 67% permanent disability; and that applicant failed to meet his burden of proof that he rebutted the permanent disability rating schedule or establish 100% permanent disability. Pursuant to our authority, we accept applicant's supplemental pleading. (Cal. Code Regs., tit. 8, § 10964.)

QMEGiven great weight

Noted that the applicant's sleep study and/or treatment should be addressed by the appropriate specialist.

Mentioned in the record that sleep apnea was not addressed by a specialist, indicating a gap in the record.

From the decision · page 6Here, it is unclear from our preliminary review of the evidence and the existing record as to whether the legal issues have been properly identified and addressed; whether the existing record is sufficient to support the decision, order, and legal conclusions of the WCJ; and/or whether further development of the record may be necessary. We note that in his July 8, 2021 qualified medical examination (QME) report, Miguel Alvarez, Ph.D., that applicant's sleep study and/or treatment should be addressed by the appropriate specialist. It does not appear that this occurred.

The rules the panel named

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

Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

Decisions by the Appeals Board must be supported by substantial evidence.

The Board reviewed the record to ensure the WCJ's decision was supported by substantial evidence.

From the decision · page 4I. We highlight the following legal principles that may be relevant to our review of this matter: It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Medical opinion must be framed in terms of reasonable medical probability, based on adequate examination and history, not speculative, and must set forth reasoning to support conclusions.

The WCJ evaluated the medical opinions for adequacy and substantial evidence.

From the decision · page 5Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 4060(c)(d), 4061(i), 4062.3(l).) A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Defendant holds the burden of proof on apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 613.)

Lab. Code, § 5705; Escobedo, supra

Defendant holds the burden of proof on apportionment of permanent disability.

The WCJ found the defendant did not meet the burden of proof on apportionment.

From the decision · page 5Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 4060(c)(d), 4061(i), 4062.3(l).) A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Defendant holds the burden of proof on apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 613.)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Decisions must be based on admitted evidence in the record; the record must be complete and adequately developed.

The Board noted the need for a complete record and adequate findings.

From the decision · page 5Further, decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc).) An adequate and complete record is necessary to understand the basis for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10787.) "It is the responsibility of the parties and the WCJ to ensure that the record is complete when a case is submitted for decision on the record. At a minimum, the record must contain, in properly organized form, the issues submitted for decision, the admissions and stipulations of the parties, and admitted evidence." (Hamilton, supra, 66 Cal.Comp.Cases at p. 475.) The WCJ's decision must "set [] forth clearly and concisely the reasons for the decision made on each issue, and the evidence relied on," so that "the parties, and the Board if reconsideration is sought, [can] ascertain the basis for the decision[.]... For the opinion on decision to be meaningful, the WCJ must refer with specificity to an adequate and completely developed record." (Id. at p. 476 (citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350]).)

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

The Appeals Board has a constitutional mandate to ensure substantial justice and must further develop the record where evidence is insufficient.

The Board considered whether further development of the record was necessary.

From the decision · page 5The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62

ADJ11919641 · April 8, 2024

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page