ADJ15164960 — California WCAB decision

ADJ15164960 · May 12, 2023

The WCAB granted defendant's petition for reconsideration, rescinded the Findings of Fact and Award issued on February 16, 2023, and returned the matter to the WCJ for further proceedings. The Petition for Removal and/or Disqualification of Judge was dismissed.

Issues decided

Medical opinions weighed

Authorities named

District office

Fresno

What the panel ordered

Defendant sought reconsideration of the Findings of Fact and Award issued by the WCJ on February 16, 2023, challenging the substantial evidence of the QME report and filing a Petition for Removal and/or Disqualification of Judge, which was dismissed. The WCAB granted reconsideration, rescinded the F&A, and returned the matter to the WCJ for further proceedings.

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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.

AOE/COERemandedback · thoracic spine · chest

The WCAB found that the QME report was incomplete and speculative due to lack of diagnostic imaging and medical records, and the treating physician's report was not substantial evidence due to lack of provider identification and signature. Therefore, the matter was remanded for further proceedings.

From the decision · page 5As to the report from QME Dr. Ybarra, having performed a physical examination of applicant, the report does not include any reference to the findings and/or results of the physical exam. Also Dr. Ybarra stated, "This comprehensive medical-legal evaluation is incomplete due to a lack of medical records and diagnostic imaging." (Joint Exh. 2, p. 4.) He then went on to state that after reviewing diagnostic imaging, including the x-rays and MRI that he had requested, he would need a "follow-up medical-legal evaluation which will include a physical evaluation of the findings demonstrated on medical records and diagnostic imaging." (Joint Exh. 2, p. 4; see also pp. 5 - 6.)

The facts that decided it

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

The treating physician's report lacked the physician's name and signature, thus not constituting substantial evidence.

Favours Defendant prevailed

This led the WCAB to reject the report as evidence for injury AOE/COE.

From the decision · page 5Regarding the issue of injury AOE/COE as raised in the Petition, we agree with the WCJ that the treating physician's opinions appear to be based on incorrect facts. (Report, p. 7.) Further, the only report from a treating physician is Joint Exh. 2. The parties refer to that exhibit as a report from Laurie Hagopian-Dresser, M.D. Review of the document clearly shows that it does not include the name of the physician, nor does it include the physician's signature. (See footnote 1, above.) A report that does not indicate the name or status of the medical provider and does not include the signature of that provider does not constitute evidence upon which a finding may be based. (Cal. Code Regs., tit. 8, § 10682(b)(15).)

The QME report was incomplete and speculative due to lack of diagnostic imaging and physical exam findings.

Favours Defendant prevailed

This led the WCAB to reject the QME report as substantial evidence and remand the matter for further proceedings.

From the decision · page 5As to the report from QME Dr. Ybarra, having performed a physical examination of applicant, the report does not include any reference to the findings and/or results of the physical exam. Also Dr. Ybarra stated, "This comprehensive medical-legal evaluation is incomplete due to a lack of medical records and diagnostic imaging." (Joint Exh. 2, p. 4.) He then went on to state that after reviewing diagnostic imaging, including the x-rays and MRI that he had requested, he would need a "follow-up medical-legal evaluation which will include a physical evaluation of the findings demonstrated on medical records and diagnostic imaging." (Joint Exh. 2, p. 4; see also pp. 5 - 6.)

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 · chiropractic

The medical-legal evaluation was incomplete due to lack of medical records and diagnostic imaging; a follow-up evaluation was needed after reviewing requested imaging.

The report was found incomplete and speculative, lacking diagnostic imaging and physical exam findings, thus not substantial evidence.

From the decision · page 5As to the report from QME Dr. Ybarra, having performed a physical examination of applicant, the report does not include any reference to the findings and/or results of the physical exam. Also Dr. Ybarra stated, "This comprehensive medical-legal evaluation is incomplete due to a lack of medical records and diagnostic imaging." (Joint Exh. 2, p. 4.) He then went on to state that after reviewing diagnostic imaging, including the x-rays and MRI that he had requested, he would need a "follow-up medical-legal evaluation which will include a physical evaluation of the findings demonstrated on medical records and diagnostic imaging." (Joint Exh. 2, p. 4; see also pp. 5 - 6.)

otherRejected

The treating physician's report lacked the physician's name and signature, thus not constituting substantial evidence.

The report did not include the name or signature of the medical provider, so it was not considered evidence.

From the decision · page 5Regarding the issue of injury AOE/COE as raised in the Petition, we agree with the WCJ that the treating physician's opinions appear to be based on incorrect facts. (Report, p. 7.) Further, the only report from a treating physician is Joint Exh. 2. The parties refer to that exhibit as a report from Laurie Hagopian-Dresser, M.D. Review of the document clearly shows that it does not include the name of the physician, nor does it include the physician's signature. (See footnote 1, above.) A report that does not indicate the name or status of the medical provider and does not include the signature of that provider does not constitute evidence upon which a finding may be based. (Cal. Code Regs., tit. 8, § 10682(b)(15).)

The rules the panel named

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

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].

A medical opinion is not substantial evidence if it is based on an inadequate medical history or examination, on incorrect legal theories, or on surmise, speculation, conjecture, or guess.

The WCAB applied this standard to reject the QME report as substantial evidence because it was incomplete and speculative.

From the decision · page 5A medical opinion is not substantial evidence if it is based on an inadequate medical history or examination, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].) When deciding a medical issue, such as whether an applicant sustained a cumulative injury, the WCJ must utilize expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) Here, Dr. Ybarra did not explain the relationship between applicant's employment and the findings and/or results of his physical examination of applicant. Nor did he have the opportunity to review the diagnostics he stated were necessary to complete his evaluation of applicant. Any conclusion addressing the issue of injury AOE/COE would be based on an inadequate medical examination/history and would constitute speculation or guess. Thus, Dr. Ybarra's report does not constitute substantial evidence

Cal. Code Regs., tit. 8, 10682(b)(15).

A report that does not indicate the name or status of the medical provider and does not include the signature of that provider does not constitute evidence upon which a finding may be based.

The WCAB applied this regulation to reject the treating physician's report as evidence because it lacked the provider's name and signature.

From the decision · page 5Regarding the issue of injury AOE/COE as raised in the Petition, we agree with the WCJ that the treating physician's opinions appear to be based on incorrect facts. (Report, p. 7.) Further, the only report from a treating physician is Joint Exh. 2. The parties refer to that exhibit as a report from Laurie Hagopian-Dresser, M.D. Review of the document clearly shows that it does not include the name of the physician, nor does it include the physician's signature. (See footnote 1, above.) A report that does not indicate the name or status of the medical provider and does not include the signature of that provider does not constitute evidence upon which a finding may be based. (Cal. Code Regs., tit. 8, § 10682(b)(15).)

ADJ15164960 · May 12, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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