What the panel ordered
The Board rescinded the WCJ's Joint Findings of Fact & Order and substituted new Findings of Fact & Order for clarity, making no substantive changes; the Board denied defendant's petition for reconsideration and upheld the finding that applicant sustained injury AOE/COE in the form of fibromyalgia.
Defendant sought reconsideration of the WCJ's Joint Findings of Fact & Order issued February 11, 2020; reconsideration was granted to study factual and legal issues further; the WCJ was unavailable to issue a report on defendant's petition, so the presiding WCJ issued a Report and Recommendation to deny reconsideration; the Board adopted and incorporated the WCJ's report and issued a decision after reconsideration.
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.
Dr. Klassen's opinion on apportionment was internally flawed and addressed causation of injury rather than causation of disability; defendants failed to prove non-industrial apportionment of lumbar spine disability.
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows
The Board found Dr. Yu's reports admissible as treatment reports from a secondary treating physician and substantial evidence temporally linking applicant's fall and work stress to fibromyalgia, rejecting Dr. Bluestone's opinions as not substantial evidence to rebut causation.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Yu's reports temporally linked applicant's fall and work stress to fibromyalgia.
Favours Applicant prevailed
These reports were found admissible and substantial evidence supporting causation of fibromyalgia.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
Dr. Bluestone's opinions were ambiguous and not substantial evidence on causation of fibromyalgia.
Favours Applicant prevailed
The Board rejected these opinions, supporting the finding of industrial causation of fibromyalgia.
From the decision · page 5After review of the existing medical evidence submitted on the record of the aforementioned matters, the Court determines that the opinions from Rodney Bluestone, M.D. and David Yu, M.D. cannot be considered substantial medical evidence upon which the disputed issues raised at Trial can be made. Specifically, Dr. Bluestone's opinions regarding causation are ambiguous. On the other hand, Dr. Yu did not review any and all medical records herein and did not address Dr. Bluestone's opinions regarding causation.
Dr. Klassen's opinion on apportionment was internally flawed and speculative.
Favours Applicant prevailed
Defendants failed to prove non-industrial apportionment of lumbar spine disability based on this opinion.
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows
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.
Temporally linked applicant's fall in 2012 and work stress to development of fibromyalgia; reports found admissible as treatment reports from a secondary treating physician; reports substantial evidence on causation of fibromyalgia but not on apportionment.
The Board found Dr. Yu's reports admissible as treatment reports from a secondary treating physician and substantial evidence temporally linking applicant's fall and work stress to fibromyalgia, rejecting Dr. Bluestone's opinions as not substantial evidence to rebut causation.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
Did not find fibromyalgia; opinions ambiguous and not substantial evidence on causation; went beyond expertise to discuss psychiatric causes; testimony suggested fibromyalgia might be transient.
The Board rejected Dr. Bluestone's opinions as not substantial evidence to rebut causation of fibromyalgia.
From the decision · page 5After review of the existing medical evidence submitted on the record of the aforementioned matters, the Court determines that the opinions from Rodney Bluestone, M.D. and David Yu, M.D. cannot be considered substantial medical evidence upon which the disputed issues raised at Trial can be made. Specifically, Dr. Bluestone's opinions regarding causation are ambiguous. On the other hand, Dr. Yu did not review any and all medical records herein and did not address Dr. Bluestone's opinions regarding causation.
Apportioned 25% of lumbar spine injury to non-industrial causes but opinion was internally flawed and addressed causation of injury, not disability; opinions stale and speculative, not substantial evidence on apportionment.
Defendants failed to prove non-industrial apportionment of lumbar spine disability based on Klassen's flawed opinion.
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4060(b)
Reports from secondary treating physicians are admissible treatment reports under Labor Code section 4060(b).
The Board found Dr. Yu's reports admissible as treatment reports from a secondary treating physician.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
Labor Code section 4605
An employee may provide a consulting or attending physician's report at their own expense, admissible unless solely to rebut a panel QME.
Applicant consulted Dr. Yu at her own expense for treatment, not solely to rebut the panel QME.
From the decision · page 11Applicant testified at trial that she saw Dr. Yu through her private insurance. She was permitted to obtain a report from a consulting or attending physician at her own expense per section 4605. Pursuant to Batten, when an employee consults with a physician at his or her own expense, in the course of seeking medical treatment, the resulting reports are admissible unless they were obtained solely to rebut the panel QME. The record here indicates that applicant was referred to Dr. Yu by Dr. Taylor to confirm the diagnosis of fibromyalgia, for which Dr. Taylor was providing treatment. The record therefore shows that applicant consulted with Dr. Yu in the course of seeking medical treatment, not solely to rebut the panel QME, Dr. Bluestone. Even taking into account Dr. Yu's undated report (Applicant's Exhibit No. 7), there is insufficient evidence that Dr. Yu has actually been provided with Dr. Bluestone's reports. Dr. Yu's opinions cannot be considered obtained solely as a rebuttal of QME opinions he has not seen.
Labor Code section 5701
Labor Code section 5701 allows further development of the record with a regular physician.
The Board ordered further development with regular physicians for disputed issues.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159
Substantial evidence means relevant, credible, and reasonable evidence with probative force on the issues.
The Board applied the substantial evidence standard to medical opinions on causation.
From the decision · page 13We therefore must consider whether there remains substantial evidence in the record in support of the finding that applicant's fibromyalgia is industrially caused. It is also well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza, supra; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it
Labor Code section 5701
Defendants bear the burden of proof on apportionment to non-industrial disability.
Defendants failed to prove non-industrial apportionment of lumbar spine disability.
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows
What proof carried it
The evidence the panel weighed, by kind.
Dr. Yu's reports temporally linking applicant's fall and work stress to fibromyalgia
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation for the fibromyalgia. Further development of the record was ordered with a regular physician per Labor Code2 section 5701. (Lab. Code, § 5701.)
Dr. Bluestone's opinions ambiguous and not substantial evidence on causation of fibromyalgia
From the decision · page 5After review of the existing medical evidence submitted on the record of the aforementioned matters, the Court determines that the opinions from Rodney Bluestone, M.D. and David Yu, M.D. cannot be considered substantial medical evidence upon which the disputed issues raised at Trial can be made. Specifically, Dr. Bluestone's opinions regarding causation are ambiguous. On the other hand, Dr. Yu did not review any and all medical records herein and did not address Dr. Bluestone's opinions regarding causation.
Dr. Klassen's opinion on apportionment internally flawed and speculative
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows
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