ADJ16458244 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration of the Findings and Award issued on April 2, 2025, denied by the WCAB panel decision on July 7, 2025.

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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.

Earnings / average weekly earningsApplicant prevailed

The WCJ found the earning capacity method under Labor Code section 4453(c)(4) more accurately reflects applicant's true earning power, supported by credible testimony and evidence, and rejected defendant's payroll-based calculation as inaccurate.

AOE/COEApplicant prevailedface · head · cervical spine

The WCJ's finding that applicant sustained injury to the cervical spine is supported by substantial medical evidence from QME Dr. Michael Smith, who examined the applicant and reviewed relevant medical records, despite defendant's challenge to Dr. Bertoldi's report.

From the decision · page 8II. Defendant first contends that the WCJ erroneously found that applicant sustained injury to the cervical spine. Specifically, defendant argues that the finding is unsupported by substantial medical evidence because Dr. Bertoldi did not review applicant's Kaiser records generated from the date of injury until February 22, 2022, and QME Dr. Smith did not examine applicant until two years after the injury. We observe that all decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) 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.

The facts that decided it

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

QME Dr. Michael Smith examined applicant and reviewed medical records, providing substantial medical evidence supporting injury to cervical spine.

Favours Applicant prevailed

Supported WCJ's finding of injury to cervical spine despite defendant's challenge to Dr. Bertoldi's report.

From the decision · page 8Marshalls (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 examinations, 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 [93 Cal. Rptr. 15, 480 P.2d 967, 36 Cal.Comp.Cases 93, 97].) In this case, Dr. Bertoldi's reporting shows that he first examined applicant on October 12, 2022, and diagnosed her with an industrial injury to the cervical spine arising on October 29, 2021. (Ex. 12, Report of Dr. Bertoldi, October 12, 2022.) However, the reporting does not show he reviewed applicant's Kaiser records generated shortly after the date of injury. As such, it does not show that it is based upon adequate history. Accordingly, we conclude that it does not constitute substantial medical evidence. But QME Dr. Smith's reporting and deposition testimony show that he examined applicant and reviewed applicant's Kaiser records generated after the date of injury; and, as such, that he based his medical opinions on an adequate history and examination. (Ex. 2, Michael Smith PQME

Favours Applicant prevailed

Defendant agreed to obtaining panel QME and later affirmed agreement despite initial objection, waiving claim that panel was improperly obtained.

Favours Applicant prevailed

Supported denial of defendant's petition to reconsider QME panel issue.

From the decision · page 11Notwithstanding the allegation that applicant failed to object until May 9, 2023, the record shows that defendant advised the court on January 30, 2023 that it agreed to obtaining an initial panel QME. (Minutes of Hearing, January 30, 2023.) Thereafter, it attempted to withdraw its agreement to obtain a panel QME on August 1, 2023 by objecting to QME Dr. Smith's upcoming evaluation--only to advise the court again that the evaluation could proceed in accordance with the prior agreement. (Ex. N, Letter of Eldon Floyd to Solov & Teitell, August 1, 2023, p. 1; Minutes of Hearing, August 9, 2023.)

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.

QMERelied upon · Orthopedic

Diagnosed head/facial contusion and cervical strain (disc disease); found injury to face, head, and cervical spine; condition not permanent and stationary.

Examined applicant and reviewed medical records, providing substantial medical evidence supporting injury to cervical spine.

From the decision · page 2On September 15, 2023, Dr. Michael Smith issued his initial PQME report based upon his evaluation of applicant on August 21, 2023. (Ex. 2, Michael Smith PQME Report, September 15, 2023, p. 1.) In the report, Dr. Smith diagnosed applicant with "Head/facial contusion" and "Cervical strain (disc disease)" and further reported:

PTPRelied upon · Orthopedic

Diagnosed cervical spine industrial injury arising on October 29, 2021; supported injury to face, head, and cervical spine.

Provided medical reports accepted as substantial medical evidence by WCJ supporting injury to cervical spine.

From the decision · page 2FACTUAL BACKGROUND On October 12, 2022, applicant's physician, Roger Bertoldi, MD, examined applicant and diagnosed her with a cervical spine industrial injury arising on October 29, 2021. (Ex. 12, Report of Dr. Bertoldi, October 12, 2022.) On January 30, 2023, the WCJ held a hearing at which the parties agreed to obtain an initial panel QME. (Minutes of Hearing, January 30, 2023.) On June 6, 2023, the Division of Workers' Compensation issued panel QME number 7591539, naming Sahil Vohra, DO, Michael Smith, MD., and Trieu Tran, MD, as panelists. (Ex. X, Selected QME Panel Number 7591539, June 6, 2023, p. 1.) On August 1, 2023, defendant asserted the following objection: The applicant is scheduled for a Qualified Medical Evaluation with Dr. Michael Smith on August 21, 2023. The defendant objects to the evaluation with Dr. Michael Smith. The parties are scheduled for a Mandatory Settlement Conference on August 9, 2023. At that time, the parties will present their arguments regarding the applicant's rights to a Qualified Medical Evaluation. Until such time as a Judge has ruled on the applicant's rights to a Qualified Medical Evaluation, the evaluation with Dr. Smith is invalid.

The rules the panel named

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

Labor Code section 4453(c)

Labor Code section 4453(c) provides methods to calculate average weekly earnings for temporary disability benefits.

Applied to determine applicant's average weekly wage and earning capacity.

From the decision · page 4(1) Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be the number of working days a week times the daily earnings at the time of the injury....

Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 74 Cal.Comp.Cases 720

Waiver requires clear, unequivocal, and decisive act showing relinquishment of a known right.

Applied to determine waiver of defendant's objection to QME panel.

From the decision · page 11Waiver is the intentional relinquishment of a known right after knowledge of the facts, and it may be either express or implied. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) (Supervalu) 74 Cal.Comp.Cases 720, 728.) "To make a case of abandonment or waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part." (First Nat'l Bank v. Maxwell (1899) 123 Cal. 360, 367-368.)

Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Substantial evidence must be relevant, reasonable, and based on adequate examination and history to support findings.

Applied to evaluate medical evidence supporting injury to cervical spine.

From the decision · page 8II. Defendant first contends that the WCJ erroneously found that applicant sustained injury to the cervical spine. Specifically, defendant argues that the finding is unsupported by substantial medical evidence because Dr. Bertoldi did not review applicant's Kaiser records generated from the date of injury until February 22, 2022, and QME Dr. Smith did not examine applicant until two years after the injury. We observe that all decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) 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.

ADJ16458244 · July 7, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

What proof carried it

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