ADJ18038876 · December 16, 2025

The Board found good cause to admit treating physician reports issued after trial setting, distinguishing McClanahan and noting the reports were not in existence at the discovery cutoff date.

From the decision · page 12progress report at least once every forty-five days from the last report of any type. (Lab. Code, § 5703(a); Cal. Code Regs., tit. 8, § 9785(f)(8).) Accordingly, it is frequently held that there is good cause to admit readily anticipated treating physician reports that were not in existence at the time of trial setting. Furthermore, McClanahan is distinguishable from the present case on the basis that in McClanahan, the Court of Appeal found that there was no good cause to admit PQME reports that could easily have been listed on the pre-trial conference statement because they were in existence for years prior to the discovery cutoff date imposed by section 5502(d)(3). The facts in McClanahan did not involve treating physician reports that did not exist before the discovery cutoff date. (Lab. Code, § 5502(d)(3), 5703(a); McClanahan, supra, 111 Cal.App.5th 1136, 1145 [90 Cal.Comp.Cases 491, 497].) We note that the admission of Applicant's Exhibits 1-M and 1-N does not in any way alter the findings and award, which we otherwise affirm.

The Board amended the Findings and Award to find the date of injury as February 11, 2022, based on the parties' stipulation and evidence.

From the decision · page 12Accordingly, we deny defendant's Petition for Reconsideration, we grant applicant's Petition for Reconsideration and amend the F&A to admit Applicant's Exhibits 1-M and 1-N and to find that applicant's date of injury is February 11, 2022.

The Board found the PQME's rating of strength loss combined with range of motion impairment persuasive and rejected the outside rater's reduction of strength loss rating as outside the rater's role and unsupported by substantial evidence.

From the decision · page 7Dr. Peterson also noted that applicant has weakness in the shoulder as a ratable factor, quoting the AMA Guides, 16.8a (Page 508), which notes that an evaluator may rate loss of strength if strength represents an impairing factor that has not been considered adequately by other methods in the Guides. Dr. Peterson opined that applicant's strength loss should be rated. He felt that applicant gave a maximal effort and that pain did not prevent him from giving maximal effort. Dr. Peterson opined that the rating should be combined with the range of motion impairment and relied upon the Guides (Page 508) which indicates that loss of strength and other impairments may be combined if they are based on unrelated etiological or pathomechanical causes.

Applicant reached maximum medical improvement (MMI) on November 18, 2023, as determined by PQME Dr. Peterson.

Favours Defendant prevailed

This MMI date was found most persuasive and supported the permanent disability rating and future medical treatment status.

From the decision · page 5The Panel QME, Alexander Peterson, M.D., evaluated the applicant on 11/18/2023. He reviewed the very lengthy and complex history of applicant's injury, reviewed the records and performed an examination. Dr. Peterson determined applicant was MMI at that 11/18/2023 appointment. Dr. Peterson's follow-up report, after review of additional records including the 12/1/2023 MRI of the right shoulder, noted there to be no change to his conclusions as set forth in the prior report. He recommended conservative management with the potential for reverse total shoulder replacement surgery.

PQME Dr. Peterson's permanent disability rating included strength loss combined with range of motion impairment, supported by AMA Guides and Almaraz/Guzman analysis.

Favours Applicant prevailed

The Board relied on Dr. Peterson's medical opinion over the outside rater's contrary opinion, affirming the 52% permanent disability rating.

From the decision · page 7Dr. Peterson also noted that applicant has weakness in the shoulder as a ratable factor, quoting the AMA Guides, 16.8a (Page 508), which notes that an evaluator may rate loss of strength if strength represents an impairing factor that has not been considered adequately by other methods in the Guides. Dr. Peterson opined that applicant's strength loss should be rated. He felt that applicant gave a maximal effort and that pain did not prevent him from giving maximal effort. Dr. Peterson opined that the rating should be combined with the range of motion impairment and relied upon the Guides (Page 508) which indicates that loss of strength and other impairments may be combined if they are based on unrelated etiological or pathomechanical causes.

Treating physician reports of Dr. Nassos dated May 8, 2025 and May 23, 2025 were initially excluded but later admitted on reconsideration due to good cause.

Favours Applicant prevailed

Admission of these reports amended the Findings and Award and supported the applicant's ongoing medical treatment status.

From the decision · page 1Applicant contends that it was error to exclude the treating physician reports of Jonathan Nassos, M.D., dated May 8, 2025 and May 23, 2025. Applicant further contends that the finding regarding the date of MMI should have been based upon the reports of Dr. Nassos, and not PQME Alexander Peterson, M.D., and that the record should be developed to obtain additional medical evaluations in response to defendant's assertion that any rating for loss of muscle strength must be supported by evaluations from two separate examiners.

Determined applicant reached MMI on 11/18/2023; rated permanent disability including strength loss combined with range of motion impairment; opined applicant gave maximal effort and pain did not prevent maximal effort; apportioned 20% to pre-existing conditions but opinion on apportionment not found substantial.

Dr. Peterson's rating of strength loss combined with range of motion impairment was found persuasive and supported by AMA Guides and Almaraz/Guzman analysis.

From the decision · page 5The Panel QME, Alexander Peterson, M.D., evaluated the applicant on 11/18/2023. He reviewed the very lengthy and complex history of applicant's injury, reviewed the records and performed an examination. Dr. Peterson determined applicant was MMI at that 11/18/2023 appointment. Dr. Peterson's follow-up report, after review of additional records including the 12/1/2023 MRI of the right shoulder, noted there to be no change to his conclusions as set forth in the prior report. He recommended conservative management with the potential for reverse total shoulder replacement surgery.

Provided treating physician reports dated May 8, 2025 and May 23, 2025, which were initially excluded but later admitted on reconsideration; supported future medical treatment but did not alter MMI status.

Reports were admitted on reconsideration as they were not in existence at discovery cutoff and good cause was found to admit them.

From the decision · page 1Applicant contends that it was error to exclude the treating physician reports of Jonathan Nassos, M.D., dated May 8, 2025 and May 23, 2025. Applicant further contends that the finding regarding the date of MMI should have been based upon the reports of Dr. Nassos, and not PQME Alexander Peterson, M.D., and that the record should be developed to obtain additional medical evaluations in response to defendant's assertion that any rating for loss of muscle strength must be supported by evaluations from two separate examiners.

AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition

Used by PQME Dr. Peterson to rate strength loss combined with range of motion impairment.

From the decision · page 7Dr. Peterson also noted that applicant has weakness in the shoulder as a ratable factor, quoting the AMA Guides, 16.8a (Page 508), which notes that an evaluator may rate loss of strength if strength represents an impairing factor that has not been considered adequately by other methods in the Guides. Dr. Peterson opined that applicant's strength loss should be rated. He felt that applicant gave a maximal effort and that pain did not prevent him from giving maximal effort. Dr. Peterson opined that the rating should be combined with the range of motion impairment and relied upon the Guides (Page 508) which indicates that loss of strength and other impairments may be combined if they are based on unrelated etiological or pathomechanical causes.

Almaraz/Guzman (2009) 74 Cal.Comp.Cases 1084 (Appeals Bd. en banc)

Applied to assess whether strength loss rating was permissible and properly combined with range of motion impairment.

From the decision · page 21 Almaraz v. Environmental Recovery Services / Guzman v. Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084 (Appeals Bd. en banc) (Almaraz/Guzman); affirmed by the Sixth District Court of Appeals in Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837].

Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613 (Appeals Bd. en banc)

Clarified roles of physicians and raters in permanent disability rating process; rejected outside rater's unilateral rating adjustment.

Labor Code section 5703(a)

Labor Code section 5703(a)

Supported admission of treating physician reports issued after trial setting due to good cause.

From the decision · page 12progress report at least once every forty-five days from the last report of any type. (Lab. Code, § 5703(a); Cal. Code Regs., tit. 8, § 9785(f)(8).) Accordingly, it is frequently held that there is good cause to admit readily anticipated treating physician reports that were not in existence at the time of trial setting. Furthermore, McClanahan is distinguishable from the present case on the basis that in McClanahan, the Court of Appeal found that there was no good cause to admit PQME reports that could easily have been listed on the pre-trial conference statement because they were in existence for years prior to the discovery cutoff date imposed by section 5502(d)(3). The facts in McClanahan did not involve treating physician reports that did not exist before the discovery cutoff date. (Lab. Code, § 5502(d)(3), 5703(a); McClanahan, supra, 111 Cal.App.5th 1136, 1145 [90 Cal.Comp.Cases 491, 497].) We note that the admission of Applicant's Exhibits 1-M and 1-N does not in any way alter the findings and award, which we otherwise affirm.

McClanahan v. Workers' Comp. Appeals Bd. (2023) 111 Cal.App.5th 1136

McClanahan v. WCAB

Distinguished from present case to support admission of treating physician reports not in existence at discovery cutoff.

From the decision · page 12progress report at least once every forty-five days from the last report of any type. (Lab. Code, § 5703(a); Cal. Code Regs., tit. 8, § 9785(f)(8).) Accordingly, it is frequently held that there is good cause to admit readily anticipated treating physician reports that were not in existence at the time of trial setting. Furthermore, McClanahan is distinguishable from the present case on the basis that in McClanahan, the Court of Appeal found that there was no good cause to admit PQME reports that could easily have been listed on the pre-trial conference statement because they were in existence for years prior to the discovery cutoff date imposed by section 5502(d)(3). The facts in McClanahan did not involve treating physician reports that did not exist before the discovery cutoff date. (Lab. Code, § 5502(d)(3), 5703(a); McClanahan, supra, 111 Cal.App.5th 1136, 1145 [90 Cal.Comp.Cases 491, 497].) We note that the admission of Applicant's Exhibits 1-M and 1-N does not in any way alter the findings and award, which we otherwise affirm.

Labor Code section 5909

Labor Code section 5909

Amended to require Board action on petitions within 60 days of case transmission; relevant to procedural posture and date of injury finding.

From the decision · page 3I. Former Labor Code section 59092 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that:

Applicant's medical status remains as MMI as declared by Dr. Peterson; no sufficient substantiation for continued temporary disability after last evaluation.

From the decision · page 5Applicant's medical status remains as it was when he was declared MMI by Dr. Peterson. As noted in the Opinion on Decision, none of the physicians rendering opinions after applicant was last seen by Dr. Jenison or by PQME Dr. Peterson have provided sufficient substantiation as to why applicant should continue to be deemed TTD and not merely treating under the future medical treatment recommendations

Outside rater Tim Null's rating was not given evidentiary weight due to incorrect occupational group and substitution of medical opinion.