ADJ13282654 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the WCAB panel on December 21, 2023.

Defendant sought reconsideration of the WCJ's October 10, 2023 Findings of Fact and Order replacing QME Moshe Wilker due to concerns about impartiality and substantial medical evidence.

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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.

QME/AME processApplicant prevailedlumbar spine · right wrist

The WCJ found that Dr. Wilker's reports lacked substantial medical evidence due to deficient medical history analysis and incomplete clinical examination, and that the QME's testimony showed bias and unwillingness to reconsider his opinions, justifying replacement.

From the decision · page 1Defendant seeks reconsideration of the October 10, 2023 Findings of Fact and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a medical assistant on July 18, 2019, sustained industrial injury to the lumbar spine and right wrist. The WCJ found good cause to replace Qualified Medical Evaluator (QME) Moshe Wilker, M.D.

The facts that decided it

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

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

The WCJ found Dr. Wilker's reports lacked substantial medical evidence as they failed to analyze medical history and clinical findings adequately.

From the decision · page 6It 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].) To constitute substantial evidence "... a medical opinion 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." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board 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

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

Medical reports and opinions are not substantial evidence if based on erroneous facts, inadequate histories or examinations, or speculation.

The WCJ determined Dr. Wilker's reports were deficient and lacked substantial evidence due to inadequate medical history and examination and biased testimony.

From the decision · page 7examinations, 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].)

ADJ13282654 · December 21, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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