ADJ11102439 · March 10, 2025

The Appeals Board found the record was not properly developed and the WCJ did not sufficiently explain the basis of the decision or the role of Dr. Pietruszka, warranting further review and reconsideration.

From the decision · page 6a 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).) Based on our review, we are not persuaded that the record is properly developed. Where the medical evidence or opinion on an issue is incomplete, stale, and no longer germane, or is based on an inaccurate history, or speculation, it does not constitute substantial evidence. (Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Here, it is unclear from our preliminary review that there is substantial medical evidence to support the WCJ's decision without additional development of the record. The WCJ does not

The Appeals Board found that it timely acted on the Petition for Reconsideration within the 60-day period required by Labor Code section 5909(a).

From the decision · page 2Here, according to Events, the case was transmitted to the Appeals Board on January 8, 2025 and 60 days from the date of transmission is Sunday, March 9, 2025. The next business day that is 60 days from the date of transmission is Monday, March 10, 2025. (See Cal. Code Regs., tit. 8, § 10600(b).)2 This decision is issued by or on Monday, March 10, 2025, so that we have timely acted on the petition as required by Labor Code section 5909(a).

The WCJ did not sufficiently explain the basis of the decision, the evidence relied upon, or the role of Dr. Pietruszka.

Favours Defendant prevailed

This lack of explanation led the Appeals Board to grant reconsideration for further review.

From the decision · page 7sufficiently explain the basis of the decision, the evidence relied upon, or the apparent inconsistencies in the applicant's testimony. In addition, it is not clear what role Marvin Pietruszka, M.D., had in this case.

Dr. Fait's reports were found not persuasive due to unsupported findings and lack of medical records, and his opinion was rejected by the WCJ.

The WCJ did not find Dr. Fait's report to be the most persuasive evidence due to unsupported findings and incomplete medical records.

From the decision · page 4Petitioner argues that WCJ must scrutinize the underlying facts relied upon by the physician, to determine whether his options constituted substantial medical evidence. However, as pointed out by the WCJ, she is entitled to choose among conflicting medical reports and rely on that which she deems most persuasive. Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2nd 476 [33 Cal.Comp.Cases 221]. Petitioner generally asserts throughout the Petition that the WCJ should have relied upon Dr. Fait in this matter. However, the WCJ did not find his report to be the most persuasive in this matter. In fact, Dr. Fait' s report contained numerous unsupported findings. He based his initial conclusion on an incomplete medical report as he did not have "any medical records." (Exhibit "C") page 1. He stated under "Discussion," I have no medical records of any kind upon which to formulate an opinion... " Para 1. Despite this, he formed a concluding regarding injures sustained by the applicant and never wavered from that, even when evidence of the orthopedic injuries was presented.

Dr. Pietruszka was the treating physician whose medical opinion was given full weight by the WCJ and relied upon for permanent disability ratings.

The WCJ gave full weight to Dr. Pietruszka's medical opinion as the treating physician and found it credible and persuasive.

From the decision · page 5The Workers' Compensation Appeals Board may choose among conflicting medical reports those which it deems most persuasive, but having done so, the board must, in all fairness to the applicant, give full weight to the findings of the doctor whose report it relies on. (Marm,. Workers' Comp. Appeals Bd. (1968) 265 Cal.App.2d 333, 334 [71 Cal.Rptr. 237].). It is well settled that the board, if it relies at all on the report and testimony of a medical examiner must give full weight to all of the findings of that doctor, and may not omit a factor of disability described by him. An award which ignores such factors lacks substantial evidence to support it. (Franklin v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 682, 684 (96 Cal. Rptr. 201, 36 Cal. Comp. Cases 429].) Robles v. Workers Compensation Appeals Bd., 63 Cal. Comp. Case 265, 268-269. Dr. Pietruszka was applicant's treating physician and the court may rely upon his opinion if found to be credible and more persuasive that the PQME report. The applicant had numerous treating physicians during the course of this lengthy litigation.

Labor Code sections 5903, 5952(d); Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Decisions by the Appeals Board must be supported by substantial evidence.

The Appeals Board reviewed the record and found the WCJ's decision may lack substantial evidence without further development.

From the decision · page 6III. We highlight the following legal principles that may be relevant to our review of this matter: It is 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 "...

Applicant's credible and unrebutted testimony was persuasive and supported by substantial medical evidence.

From the decision · page 6applicant's testimony and the medical evidence considered. The evidence provided at trial by way of applicant's credible testimony was found to be persuasive and supported by substantial medical evidence. Dr. Pietruszka offered ratings of orthopedic injuries and the WCJ, having relied on his report, awarded the applicant permanent disability based on those ratings. With respect to the ratings, the Judge is not obligated to obtain a formal rating from the DEU and none was obtained here. No formal instruction were required.