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].)