ADJ15122456 · August 18, 2022

The WCAB found that the medical evidence from neurologists did not address all symptoms affecting disability status and that the treating physician's reports lacked substantial evidence and clear opinion on temporary disability, warranting further development of the record.

From the decision · page 3The parties proceeded to trial on March 29, 2022. They stipulated that applicant sustained injury AOE/OCE to his head, right ear in the form of hearing loss, and in the form of loss of smell. (Minutes of Hearing and Summary of Evidence (MOH/SOE), March 29, 2022, p. 2.) The issues submitted for decision included temporary disability/permanent and stationary date, and whether the reports from treating physician, Dr. Dahi, are substantial evidence. (MOH/SOE, pp. 2 § 3.)

Neurologists' opinions addressed only neurological symptoms and deferred other symptoms to specialists, thus not substantial evidence for disability status.

Favours Applicant prevailed

This limited scope meant the medical evidence did not fully address the issue of temporary disability.

From the decision · page 4Our review of the trial record indicates that applicant's "head injury" was a traumatic brain injury caused by a temporal fracture, a skull fracture, swelling of the brain and bleeding in and around the brain resulting in numerous conditions and/or symptoms. QME Dr. Verpukhovskiy and Dr. Lin both stated that from a "neurological perspective," applicant's condition is permanent and stationary. (Def. Exh. A, p. 34; Def. Exh. B, p. 2 [EAMS p. 5].) However, Dr. Verpukhovskiy also deferred to a "specialist in the field of orthopedic surgery" and "a QME in the field of psychology" (Def. Exh. A, p. 33) and Dr. Lin stated he would defer applicant's "official" work status to "his primary treating doctor, who is the pain management specialist." (Def. Exh. B, p. 2 [EAMS p. 5].) The opinions stated by Dr. Verpukhovskiy and Dr. Lin pertain only to applicant's neurological symptoms and they do not address any other symptoms or conditions that could affect applicant's disability status. Based thereon, the reports from Dr. Verpukhovskiy and Dr. Lin do not constitute substantial evidence as to the issue of applicant's disability status.

Treating physician's reports did not explain the basis for statements of temporary disability and did not clearly state it was his medical opinion.

Favours Applicant prevailed

Lack of explanation and clear medical opinion meant the reports were not substantial evidence for disability status.

From the decision · page 4It has long been the law that in order to constitute substantial evidence, a medical opinion must be based on pertinent facts and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660].) As noted above, Dr. Dahi is applicant's pain management treating physician, but in neither of his reports does the doctor explain the basis for his statements that "Per patient reports the patient is currently not working and is temporarily disabled." (App. Exh. 1, January 27, 2022, p. 3; App. Exh. 1, Dr. Dahi, February 16, 2022, p. 3.) Also, as noted by the WCJ, Dr. Dahi did not clearly state that it was his medical opinion that applicant was currently temporarily disabled. (Findings, p. 3, Opinion on Decision.) Thus, we agree that the reports from Dr. Dahi are not substantial evidence regarding applicant's disability status.

Stated applicant was temporarily disabled based on patient reports but did not clearly state it was his medical opinion; reports lacked explanation and substantial evidence for disability status.

Reports did not explain basis for statements and did not clearly state medical opinion of temporary disability.

From the decision · page 4It has long been the law that in order to constitute substantial evidence, a medical opinion must be based on pertinent facts and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660].) As noted above, Dr. Dahi is applicant's pain management treating physician, but in neither of his reports does the doctor explain the basis for his statements that "Per patient reports the patient is currently not working and is temporarily disabled." (App. Exh. 1, January 27, 2022, p. 3; App. Exh. 1, Dr. Dahi, February 16, 2022, p. 3.) Also, as noted by the WCJ, Dr. Dahi did not clearly state that it was his medical opinion that applicant was currently temporarily disabled. (Findings, p. 3, Opinion on Decision.) Thus, we agree that the reports from Dr. Dahi are not substantial evidence regarding applicant's disability status.

Considered applicant's neurological condition permanent and stationary as of 2/11/22; deferred to specialists for orthopedic and psychological symptoms; did not address overall disability status.

Opinion limited to neurological symptoms and deferred other symptoms to specialists, thus not substantial evidence for disability status.

From the decision · page 4Our review of the trial record indicates that applicant's "head injury" was a traumatic brain injury caused by a temporal fracture, a skull fracture, swelling of the brain and bleeding in and around the brain resulting in numerous conditions and/or symptoms. QME Dr. Verpukhovskiy and Dr. Lin both stated that from a "neurological perspective," applicant's condition is permanent and stationary. (Def. Exh. A, p. 34; Def. Exh. B, p. 2 [EAMS p. 5].) However, Dr. Verpukhovskiy also deferred to a "specialist in the field of orthopedic surgery" and "a QME in the field of psychology" (Def. Exh. A, p. 33) and Dr. Lin stated he would defer applicant's "official" work status to "his primary treating doctor, who is the pain management specialist." (Def. Exh. B, p. 2 [EAMS p. 5].) The opinions stated by Dr. Verpukhovskiy and Dr. Lin pertain only to applicant's neurological symptoms and they do not address any other symptoms or conditions that could affect applicant's disability status. Based thereon, the reports from Dr. Verpukhovskiy and Dr. Lin do not constitute substantial evidence as to the issue of applicant's disability status.

Diagnosed traumatic brain injury and considered neurological condition permanent and stationary; deferred official work status to treating pain management physician; did not address overall disability status.

Opinion limited to neurological perspective and deferred work status to treating physician, thus not substantial evidence for disability status.

From the decision · page 4Our review of the trial record indicates that applicant's "head injury" was a traumatic brain injury caused by a temporal fracture, a skull fracture, swelling of the brain and bleeding in and around the brain resulting in numerous conditions and/or symptoms. QME Dr. Verpukhovskiy and Dr. Lin both stated that from a "neurological perspective," applicant's condition is permanent and stationary. (Def. Exh. A, p. 34; Def. Exh. B, p. 2 [EAMS p. 5].) However, Dr. Verpukhovskiy also deferred to a "specialist in the field of orthopedic surgery" and "a QME in the field of psychology" (Def. Exh. A, p. 33) and Dr. Lin stated he would defer applicant's "official" work status to "his primary treating doctor, who is the pain management specialist." (Def. Exh. B, p. 2 [EAMS p. 5].) The opinions stated by Dr. Verpukhovskiy and Dr. Lin pertain only to applicant's neurological symptoms and they do not address any other symptoms or conditions that could affect applicant's disability status. Based thereon, the reports from Dr. Verpukhovskiy and Dr. Lin do not constitute substantial evidence as to the issue of applicant's disability status.

Diagnosed anosmia and post-concussion syndrome; discharged applicant as permanent and stationary from his perspective.

From the decision · page 3In otolaryngologist Pierre F. Giammanco, M.D.'s February 24, 2022 PR-2, the doctor diagnosed applicant as having anosmia [loss of sense of smell], and post-concussion syndrome. The PR-2 also states that, "per ptp [primary treating physician] discharged MMI." (Def. Exh. C, Dr. Giammanco, February 24, 2022, p. 1.)

Labor Code 5952

An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record.

The WCAB reviewed the medical evidence and found it insufficient to support the denial of temporary disability benefits.

From the decision · page 3Temporary disability is an impairment resulting in an incapacity to work that is reasonably expected to be cured or improved with proper medical treatment. (Signature Fruit Co. v. Workers' Comp. Appeals Bd. (Ochoa) (2006) 142 Cal.App.4th 790, 795 [71 Cal.Comp.Cases 1044]; Chavira v. Workers' Comp. Appeals Bd. (Johns-Manville Sales Corp.) (1991) 235 Cal.App.3d 463, 473 [56 Cal.Comp.Cases 631].) A determination regarding whether an applicant's condition is permanent and stationary or that the applicant is temporarily totally disabled, typically requires medical evidence. (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 867 [44 Cal.Comp.Cases 798]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) An award, order or decision by the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code § 5952; Garza v. Workmen's Comp.

Reports from neurologists did not address all symptoms affecting disability status; treating physician's reports lacked explanation and clear opinion on temporary disability.

From the decision · page 4Our review of the trial record indicates that applicant's "head injury" was a traumatic brain injury caused by a temporal fracture, a skull fracture, swelling of the brain and bleeding in and around the brain resulting in numerous conditions and/or symptoms. QME Dr. Verpukhovskiy and Dr. Lin both stated that from a "neurological perspective," applicant's condition is permanent and stationary. (Def. Exh. A, p. 34; Def. Exh. B, p. 2 [EAMS p. 5].) However, Dr. Verpukhovskiy also deferred to a "specialist in the field of orthopedic surgery" and "a QME in the field of psychology" (Def. Exh. A, p. 33) and Dr. Lin stated he would defer applicant's "official" work status to "his primary treating doctor, who is the pain management specialist." (Def. Exh. B, p. 2 [EAMS p. 5].) The opinions stated by Dr. Verpukhovskiy and Dr. Lin pertain only to applicant's neurological symptoms and they do not address any other symptoms or conditions that could affect applicant's disability status. Based thereon, the reports from Dr. Verpukhovskiy and Dr. Lin do not constitute substantial evidence as to the issue of applicant's disability status.