ADJ13245796 — California WCAB decision

ADJ13245796 · June 3, 2024

The WCAB grants the Petition for Reconsideration, rescinds the WCJ's decision, substitutes a new Findings and Order finding Dr. Michaels's reports reimbursable as medical-legal expenses, and defers issues of amount, penalties, interest, and filing fee to the trial level.

Issues decided

Medical opinions weighed

Authorities named

District office

Long Beach

What the panel ordered

Lien claimant Premier Psychological Services seeks reconsideration of the WCJ's Findings of Fact and Orders issued March 7, 2024, which denied compensable industrial injury and disallowed lien claims, penalties, interest, and filing fee requests.

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.

Psyche AOE/COEDefendant prevailedpsyche

Dr. Michaels assumed physical injuries without medical evidence from an AME or QME; thus, his opinion on compensable consequence psyche injury was not substantial evidence.

From the decision · page 6Lien claimant also failed to demonstrate that applicant sustained a psychiatric injury as a compensable consequence of an industrial orthopedic industry. In concluding otherwise, Dr. Michaels found, without the assistance of medical reporting by an Agreed Medical Evaluator (AME) or Qualified Medical Evaluator (QME) in the field of orthopedics, or similar medical evidence, that applicant did, in fact, sustain the physical injuries that she described to Dr. Michaels during their discussions. In his report, Dr. Michaels admitted that he was not capable of diagnosing physical injuries, stating: "Assessment of the applicant's physical functioning is beyond the scope of my expertise...." (Lien Claimant Exh. 104, p. 22.) In other words, Dr. Michaels assumed that applicant sustained one or more industrial physical injuries and opined that she also sustained a psychological injury as a compensable consequence. Without additional evidence to support Dr. Michel's underlying assumption, the report is not capable of proving or disproving a disputed medical fact. Thus, the WCJ's decision to reject Dr. Michaels's report as substantial medical evidence of a compensable consequence psyche injury is affirmed.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Michaels's reports were conclusory and lacked substantial medical evidence of injury AOE/COE or compensable consequence psyche injury.

Favours Defendant prevailed

This lack of substantial evidence led to denial of compensable injury and lien claims.

From the decision · page 4In this case, lien claimant relied solely upon the reports issued by Dr. Michaels to support its claims that applicant suffered injury AOE/COE to psyche, stress, and sleep, as well as a compensable consequence injury to her psyche based upon alleged orthopedic injuries. Upon review, we conclude that Dr. Michaels's reports are conclusory and do not constitute substantial evidence of the alleged injuries. To qualify as substantial evidence, a physician's report must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (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, 612 (Appeals Board en banc).)

Dr. Michaels assumed physical injuries without medical evidence from an AME or QME, undermining his opinion on compensable consequence psyche injury.

Favours Defendant prevailed

Without medical evidence supporting physical injuries, the compensable consequence claim was not substantiated.

From the decision · page 6Lien claimant also failed to demonstrate that applicant sustained a psychiatric injury as a compensable consequence of an industrial orthopedic industry. In concluding otherwise, Dr. Michaels found, without the assistance of medical reporting by an Agreed Medical Evaluator (AME) or Qualified Medical Evaluator (QME) in the field of orthopedics, or similar medical evidence, that applicant did, in fact, sustain the physical injuries that she described to Dr. Michaels during their discussions. In his report, Dr. Michaels admitted that he was not capable of diagnosing physical injuries, stating: "Assessment of the applicant's physical functioning is beyond the scope of my expertise...." (Lien Claimant Exh. 104, p. 22.) In other words, Dr. Michaels assumed that applicant sustained one or more industrial physical injuries and opined that she also sustained a psychological injury as a compensable consequence. Without additional evidence to support Dr. Michel's underlying assumption, the report is not capable of proving or disproving a disputed medical fact. Thus, the WCJ's decision to reject Dr. Michaels's report as substantial medical evidence of a compensable consequence psyche injury is affirmed.

The rules the panel named

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

Lab. Code, §§ 4600(a), 4903(b)

A lien for medical treatment is allowable only when the treatment rendered is reasonably required to cure or relieve an injured worker from the effects of an industrial injury.

Applied to determine lien claimant's burden to prove industrial injury and entitlement to medical treatment.

From the decision · page 3A lien for medical treatment is allowable only when the treatment rendered is reasonably required to cure or relieve an injured worker from the effects of an industrial injury. (Lab. Code, § 4600(a), 4903(b).) A defendant will not be liable for a medical treatment where there is no industrial injury. (Kunz v. Patterson Floor Coverings (Kunz) (2002) 67 Cal.Comp.Cases 1588, 1593 (Appeals Board en banc).) Therefore, where a lien claimant, rather than the injured worker, litigates the issue of entitlement to payment for industrially-related medical treatment, the lien

Lab. Code, §§ 3202.5, 5705

A lien claimant must prove injury by preponderance of evidence and that treatment was reasonable and necessary to cure or relieve effects of injury.

Applied to lien claimant's burden to prove injury and treatment necessity in a denied claim.

From the decision · page 4claimant stands in the shoes of the injured worker and the lien claimant must establish injury by preponderance of evidence. (Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Martin) (1985) 39 Cal.3d 57, 67 [50 Cal.Comp.Cases 411]; Kunz, supra, at p. 1592; Lab. Code, § 3202.5, 5705.) Additionally, in Torres v. AJC Sandblasting (Torres) (2012) 77 Cal.Comp.Cases 1113 (Appeals Board en banc), we explained that sections 3202.5 and 5705 "require that [a] lien claimant prove that the treatment rendered was reasonable and necessary to cure or relieve the effects of the injury." (Id. at p. 1121.)

Lab. Code, §§ 4060(b), 4064(a)

Reports of treating physicians are admissible as medical-legal evaluations under Labor Code section 4060(b).

Applied to find Dr. Michaels's reports reimbursable as medical-legal expenses.

From the decision · page 6Nevertheless, we find lien claimant's reports are reimbursable as a medical legal expenses. Pursuant to the Labor Code, "Neither the employer nor the employee shall be liable for any comprehensive medical-legal evaluation performed by other than the treating physician, except as provided in this section. However, reports of treating physicians shall be admissible." (Lab. Code, § 4060(b).)

Cal. Code Regs., tit. 8, § 9793

Definition of comprehensive medical-legal evaluation and primary treating physician under Cal. Code Regs., tit. 8, § 9793.

Applied to define medical-legal evaluation and primary treating physician for reimbursement purposes.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed