ADJ16458244 · July 7, 2025

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.

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.

Defendant waived its claim that the QME panel was improperly obtained by agreeing to obtain the panel and later affirming that agreement, despite initial objections.

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.)

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.)

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:

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.

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.

Applicant's credible testimony that she did not feel significant neck pain at the time of injury but later suspected neck injury due to limited range of motion and failing Department of Transportation physical exam.

From the decision · page 4Applicant... alleg[ed] she sustained a specific injury on October 29, 2021 to her head, face, and neck when she was struck in the face by a gas handle. Defendant admitted the injury with regards to the face and head but denied liability for the neck.... The Orthopedic Panel QME Dr. Michael Smith and applicant's Primary Treating Physician Dr. Roger Bertoldi found applicant sustained an injury to her face, head, and cervical spine as a result of the October 29, 2021 industrial injury, and found applicant's condition has not reached permanent and stationary status. The undersigned WCJ accepted Orthopedic Panel QME Dr. Michael Smith medical reports and deposition testimony as substantial medical evidence and accepted his medical findings with regards to parts of body injured. The undersigned WCJ also accepted the Primary Treating Physician Dr. Roger Bertoldi medical reports as substantial medical evidence and accepted his medical findings with regards to parts of body injured. The undersigned WCJ acknowledged defendant's argument that applicant did not report neck complaints following her injury, but the undersigned WCJ relied on applicant's credible testimony at Trial that she did not feel significant pain in her neck at the time of injury.