ADJ10450766 — California WCAB decision

What the panel ordered

Petition for Reconsideration dismissed; Petition for Removal denied.

Defendant sought reconsideration and removal of WCJ Findings of Fact regarding PQME re-evaluations in psychiatry and urology; WCJ found re-evaluations not warranted; WCAB reviewed petition and WCJ report and dismissed reconsideration and denied removal.

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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.

Medical treatment / UR / IMRDefendant prevailedpsychiatry · urology

The WCJ found re-evaluations not warranted; the defendant failed to show significant prejudice or irreparable harm to justify removal; reconsideration was adequate remedy; thus petition dismissed and removal denied.

From the decision · page 3On October 4, 2024, the WCJ issued the Findings of Fact, in which the WCJ found, in relevant part, that applicant was employed by defendant, that the injuries to her lumbar spine and coccyx were AOE/COE, and that "[r]e-evaluations with the PQME in psychiatry, Dr. Howard Greils and the PQME in urology, Dr. Ernest Agatstein, are not warranted." (10/4/24 Findings of Fact, at pp. 1-2.)

The facts that decided it

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.

PTPPartially credited

Final report admitted into evidence; no indication re-evaluation warranted.

From the decision · page 22). Applicant filed a Declaration of Readiness to Proceed (DOR), on May 23, 2024, alleging that an expedited hearing was needed because "defendants have set the evaluation with urology QME Dr. Agatstein, however applicant has objected given that applicant is already MMI by this QME." (5/23/24 DOR.) The issue for the June 24, 2024, trial was "whether reevaluations with urology PQME Dr. Ernest Agatstein and psych QME Dr. Howard M. Greils are warranted, given the stipulation made at the October 9, 2023 trial, MOH/SOE, p. 2, lines 5-6." (6/24/24 First Amended PTCS; 6/24/24 MOH.) Applicant's exhibits 8 through 17, which consisted of two reports from Dr. Greils, five reports from Dr. Agatstein, transcripts of Dr. Agatstein's deposition, and the final report from the Primary Treating Physician, Dr. Richard Dorsey, were admitted into evidence. (6/24/24 MOH at pp. 2-3.) The WCJ ordered the parties to file trial briefs and indicated that the matter would be

QMERelied upon · psychiatry

Found applicant reached maximum medical improvement; re-evaluation not warranted.

Stipulation and trial evidence showed MMI and no need for re-evaluation.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

QMERelied upon · urology

Found applicant reached maximum medical improvement; re-evaluation not warranted.

Stipulation and trial evidence showed MMI and no need for re-evaluation.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours neutral

Stipulation that applicant was employed by defendant and injuries to coccyx and lumbar spine were AOE/COE; all other body parts deferred.

From the decision · page 2BACKGROUND Applicant filed Applications for Adjudication (Applications) on February 6, June 27, and July 5, 2016, in which she alleged that while assisting a patient on July 30, 2015, in the course of her work for defendant, she injured multiple body parts. (2/6/16 Application; 6/27/16 Amended Application; 7/5/16 Amended Application.) PQME evaluations of applicant were conducted by a number of doctors, including a psychiatric evaluation by Dr. Howard M. Greils and urology evaluations by Dr. Ernest H. Agatstein. (Applicant's Exbs. 8-14.) The matter went to trial on September 18 and October 9, 2023, on the issue of whether a replacement panel in internal medicine was warranted. (9/18/23 MOH; 10/9/23 MOH.) The parties stipulated that applicant was employed by defendant; that the injuries to her coccyx and lumbar spine were arising out of and in the course of her employment (AOE/COE); that all other body parts were deferred; and that the PQMEs in "psychiatry, neurology, orthopedics, and [urology]" all found that she had reached maximum medical improvement. (Ibid.) On December 1, 2023, the WCJ issued Findings of Fact and Order, finding that applicant sustained injury AOE/COE to her coccyx and lumbar spine; and that a replacement PQME in the field of internal medicine was not warranted. (12/1/23 F&O, at p.

Other evidencefavours Defendant prevailed

Defendant failed to show significant prejudice or irreparable harm to justify removal.

From the decision · page 5Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).) Here, defendant made neither required showing. Thus, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.

ADJ10450766 · December 31, 2024

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