ADJ14729505 · June 7, 2024

The WCJ found the primary treating physician's (Dr. Martinovsky) opinion to be substantial evidence and more persuasive than the QME's (Dr. Jennings) opinion, awarding 32% PPD based on credible testimony and medical evidence.

From the decision · page 3Applicant, a 39-year-old certified nurse assistant, suffered an accepted injury to her thoracic spine while helping pull a patient into bed. The primary issue at trial was permanent disability. At trial, applicant relied on reports from the primary treating physician, Gary Martinovsky, M.D. Defendant relied on reports from the QME, Edward Jennings, D.C. The parties stipulated to the PPD ratings of Dr. Martinovsky's report(s) (32%) and Dr. Jennings report(s) (8%).

Dr. Martinovsky personally reviewed the MRI films and was more familiar with the applicant's condition as her treating physician.

Favours Applicant prevailed

This supported the WCJ's finding that Dr. Martinovsky's opinion was substantial evidence and more persuasive than the QME's.

From the decision · page 4The parties stipulated to the permanent disability ratings of Drs. Martinovsky (32%) and Dr. Jennings (8%). Dr. Martinovsky's reports constituted substantial evidence. He took an accurate history, performed a physical examination and reviewed all the medical records. As Candace the applicant's treating physician, he was more familiar with her condition. He personally reviewed the MRI films, which he is qualified to do as a physician. Dr. Jennings was unable to review the films and simply relied on the radiologist report. Applicant's condition appears to have worsened since the Dr. Jennings evaluation. It does not appear that Dr. Jennings reviewed all the medical records. Dr. Jenning's report curiously describes impairment to the LEFT Thoracic spine and separately to the RIGHT Thoracic spine. For these reasons, Dr. Jennings opinions regarding permanent disability are not persuasive.

Applicant's credible testimony about worsening symptoms and impact on daily activities.

Favours Applicant prevailed

Supported the award of 32% permanent partial disability based on the treating physician's rating.

From the decision · page 4Applicant was the only witness. Her testimony is summarized at pages 3- 5 of the Opinion. She testified credibly about her injury and disability. She stated that her condition worsened between the time Dr. Jennings evaluated her on July 8, 2022 and Dr. Martinovsky's evaluation on January 5, 2023.

Dr. Jennings did not review all medical records and could not review MRI films personally, making his opinion less persuasive.

Favours Applicant prevailed

This undermined the defense's challenge to the disability rating and supported the WCJ's reliance on Dr. Martinovsky's opinion.

From the decision · page 4The parties stipulated to the permanent disability ratings of Drs. Martinovsky (32%) and Dr. Jennings (8%). Dr. Martinovsky's reports constituted substantial evidence. He took an accurate history, performed a physical examination and reviewed all the medical records. As Candace the applicant's treating physician, he was more familiar with her condition. He personally reviewed the MRI films, which he is qualified to do as a physician. Dr. Jennings was unable to review the films and simply relied on the radiologist report. Applicant's condition appears to have worsened since the Dr. Jennings evaluation. It does not appear that Dr. Jennings reviewed all the medical records. Dr. Jenning's report curiously describes impairment to the LEFT Thoracic spine and separately to the RIGHT Thoracic spine. For these reasons, Dr. Jennings opinions regarding permanent disability are not persuasive.

Assigned 32% permanent partial disability rating for thoracic spine using DRE Category III based on clinical findings, MRI review, and patient symptoms.

The WCJ found Dr. Martinovsky's opinion substantial evidence due to his thorough history, examination, and MRI review, and familiarity with the patient's condition.

From the decision · page 3Applicant, a 39-year-old certified nurse assistant, suffered an accepted injury to her thoracic spine while helping pull a patient into bed. The primary issue at trial was permanent disability. At trial, applicant relied on reports from the primary treating physician, Gary Martinovsky, M.D. Defendant relied on reports from the QME, Edward Jennings, D.C. The parties stipulated to the PPD ratings of Dr. Martinovsky's report(s) (32%) and Dr. Jennings report(s) (8%).

Assigned 8% permanent partial disability rating for thoracic spine, but was found less persuasive due to limited record review and inability to review MRI films.

The WCJ found Dr. Jennings's opinion less persuasive because he did not review all medical records and could not review MRI films personally.

From the decision · page 3Applicant, a 39-year-old certified nurse assistant, suffered an accepted injury to her thoracic spine while helping pull a patient into bed. The primary issue at trial was permanent disability. At trial, applicant relied on reports from the primary treating physician, Gary Martinovsky, M.D. Defendant relied on reports from the QME, Edward Jennings, D.C. The parties stipulated to the PPD ratings of Dr. Martinovsky's report(s) (32%) and Dr. Jennings report(s) (8%).

Labor Code Sections 5703, 5708

Treating physician reports are generally admissible under Labor Code Sections 5703 and 5708.

The WCJ admitted Dr. Martinovsky's reports despite being obtained after discovery closed, as defendant was allowed a supplemental report from the QME.

From the decision · page 5Defendant objected to Dr. Martinovsky's reports (exhibits 1,5 and 7) because they were solicited after discovery closed at the MSC. Treating physician reports are generally admissible. Labor Code Sections 5703. Although these reports were obtained after the closure of discovery, I believed that they should be admitted in order to have a complete record. Additionally, defendant was afforded the opportunity to obtain a supplemental report from Dr. Jennings on December 18, 2023. Defendant did in fact get a supplemental report from Dr. Jennings. It is well established that the WCJ has broad discretion to make inquiry in a manner which is best calculated to ascertain the substantial rights of the parties. Labor Code Section 5708. Accordingly, exhibits 1, 5 and 7 were appropriately admitted into evidence.

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372

The relevant and considered opinion of one physician may constitute substantial evidence even if inconsistent with other medical opinions.

The WCJ relied on Dr. Martinovsky's opinion as substantial evidence despite conflicting opinions from Dr. Jennings.

From the decision · page 1We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Applicant's credible testimony about worsening thoracic pain and disability affecting daily activities.

From the decision · page 4Applicant was the only witness. Her testimony is summarized at pages 3- 5 of the Opinion. She testified credibly about her injury and disability. She stated that her condition worsened between the time Dr. Jennings evaluated her on July 8, 2022 and Dr. Martinovsky's evaluation on January 5, 2023.