What the panel ordered
Petition for Reconsideration is granted; the Findings and Award issued by the WCJ on February 18, 2022 is rescinded; the matter is returned to the trial level for further proceedings.
Applicant seeks reconsideration of the Findings and Award issued by the WCJ on February 18, 2022, which found that the orthopedic QME did not provide a definitive determination on the need for lumbar spine surgery on an industrial basis.
This docket was decided more than once. Shown here is the latest released decision; we also hold March 15, 2021.
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.
The orthopedic QME, Dr. Gumbs, recommended surgery but deferred the specific type of surgery to the surgeon, making the record incomplete for adjudication. The Appeals Board found the record insufficient and remanded for further development, including obtaining a spinal surgeon's report.
From the decision · page 4Whether Applicant needs lumbar spine surgery on an industrial basis per PQME Gumbs or whether PQME Gumbs defers the need for surgery to another individual.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Gumbs recommended lumbar spine surgery but deferred the specific type of surgery to the surgeon who will perform the operation.
Favours neutral
This deferral made the medical record incomplete for adjudication on the need for surgery, leading to remand for further development.
From the decision · page 2his May 25, 2021 report, Dr. Gumbs stated in relevant part:
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.
Dr. Gumbs recommended lumbar spine surgery but deferred the specific type of surgery to the surgeon who will perform the operation, explaining that the decision is best left to the operating physician at the time of surgery.
Dr. Gumbs stated that the specific type of lumbar spine surgery should be determined by the surgeon performing the operation, as the surgeon may need to make intraoperative decisions.
From the decision · page 2his May 25, 2021 report, Dr. Gumbs stated in relevant part:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, §§ 5903, 5952(d)
Decisions of the Appeals Board must be supported by substantial evidence.
The Board reviewed whether the QME's opinion constituted substantial evidence on the need for lumbar spine surgery.
From the decision · page 4Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d);1 Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)
A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning in support of its conclusions.
The Board applied this standard to evaluate the sufficiency of the QME's opinion on surgery necessity.
From the decision · page 5To 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. Marshalls (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 [36 Cal.Comp.Cases 93].)
Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]
Medical reports and opinions are not substantial evidence if they are erroneous, based on facts no longer germane, inadequate histories or examinations, or incorrect legal theories; they fail if based on surmise, speculation, conjecture or guess.
The Board found the QME's deferral of specific surgery type made the opinion insufficient as substantial evidence.
From the decision · page 5To 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. Marshalls (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 [36 Cal.Comp.Cases 93].)
Lab. Code, §§ 5701, 5906
The Board has discretionary authority to develop the record when the medical record is not substantial evidence or to provide due process or fully adjudicate issues.
The Board decided to remand for further development of the medical record regarding the specific type of lumbar spine surgery.
From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.) The "Board may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based, and even that this principle may be appropriately applied in favor of the employee." (San Bernardino Cmty. Hosp. v. Workers' Compensation Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 937-938 [64 Cal.Comp.Cases 986].)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Gumbs' reports and deposition testimony explaining deferral of specific surgery type to the surgeon
From the decision · page 2his May 25, 2021 report, Dr. Gumbs stated in relevant part:
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
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