What the panel ordered
Petition for Reconsideration denied by the Appeals Board on September 10, 2024.
Defendant North River Insurance Company seeks reconsideration of the June 17, 2024 Findings of Fact, Award and Orders (F&O) regarding apportionment analysis by QME Dr. Gregorius, challenging the WCJ's appointment of a regular physician and rejection of QME's apportionment opinion as substantial evidence.
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 WCJ found the QME's apportionment analysis inconsistent and not substantial evidence, leading to appointment of a regular physician with expertise in thoracic outlet syndrome. The Appeals Board concurred and denied reconsideration, finding no error in the WCJ's weighing of evidence.
From the decision · page 2The parties have selected F. Karl Gregorius, M.D., as the QME in neurosurgery. On April 24, 2024, the parties proceeded to trial. The parties stipulated therein to applicant's injury as having arisen out of and in the course of employment, and to injury to the bilateral wrists, elbows, and in the form of thoracic outlet syndrome. (Minutes of Hearing (Minutes), dated April 24, 2024, at p. 2:8.) The parties further stipulated, in relevant part, to the scheduled rating of the reporting of QME Dr. Gregorius, and to applicant's entitlement to future medical care to the bilateral wrists, elbow, and for applicant's thoracic [outlet] syndrome. (Id. at p. 2:38.) The sole issue framed by the parties was the "applicable apportionment" of QME Dr. Gregorius. The WCJ provided the parties with additional time in which to file trial briefs, and ordered the matter submitted for decision on May 22, 2024. On June 17, 2024, the WCJ issued the F&O, ordering in relevant part the appointment of Jonathan Rutchik, M.D., as a regular physician pursuant to Labor Code section 5701. The WCJ's Opinion on Decision notes that while the WCJ found the opinions of QME Dr. Gregorius to be well-reasoned, the QME stated in his deposition testimony that he was not an expert, and that the QME's reports and testimony did not rise to the level of substantial evidence.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The QME's apportionment analysis was inconsistent, changing from no mention to 100% cumulative trauma to 50% preexisting factors.
Favours Defendant prevailed
This inconsistency led the WCJ to find the QME's apportionment opinion not substantial evidence and appoint a regular physician.
From the decision · page 6More specifically, Dr. Gregorius does not even mention apportionment in his first three reports (Joint AA-Joint CC.) In his fourth report (Joint DD) he opines that the entire award should be apportioned to her cumulative trauma claim. (See page 6 of Joint DD). Thereafter, during his deposition on 3/1/21, Dr. Gregorius changed his opinion on apportionment to 50% pre-existing. (Joint HH pgs. 49- 52) This change was apparently based upon review of records indicating that applicant had similar symptoms dating back to at least 2006 and possibly beyond. While interesting, the relevance of that factor seems to dull when one realizes that this applicant has worked the same job with the same duties and thus same industrial exposures since at least 2001.
The QME testified he was not an expert in the mechanics of thoracic outlet syndrome and deferred to other physicians.
Favours Defendant prevailed
This testimony undermined the QME's apportionment opinion on thoracic outlet syndrome, supporting the WCJ's rejection of that opinion as substantial evidence.
From the decision · page 6In addition, during his deposition, Dr. Gregorius repeatedly indicated his was not an "expert" in the mechanics of Thoracic Outlet Syndrome (TOS) and indicated that physical therapists and proper treating physicians should be deferred to. One of those physicians was Dr. Newkirk. In his report dated 4/25/21 (Applicant's Exhibit 1) Dr. Newkirk opined that the TOS was 100% industrially related.
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.
QME Dr. Gregorius provided apportionment analysis initially inconsistent, later opining 50% apportionment to preexisting factors, but was found not substantial evidence by WCJ due to inconsistencies and lack of expertise in thoracic outlet syndrome mechanism.
The WCJ found the QME's apportionment analysis inconsistent and not substantial evidence, citing the QME's own deposition testimony disclaiming expertise in thoracic outlet syndrome mechanism and deferring to other physicians.
From the decision · page 2The parties have selected F. Karl Gregorius, M.D., as the QME in neurosurgery. On April 24, 2024, the parties proceeded to trial. The parties stipulated therein to applicant's injury as having arisen out of and in the course of employment, and to injury to the bilateral wrists, elbows, and in the form of thoracic outlet syndrome. (Minutes of Hearing (Minutes), dated April 24, 2024, at p. 2:8.) The parties further stipulated, in relevant part, to the scheduled rating of the reporting of QME Dr. Gregorius, and to applicant's entitlement to future medical care to the bilateral wrists, elbow, and for applicant's thoracic [outlet] syndrome. (Id. at p. 2:38.) The sole issue framed by the parties was the "applicable apportionment" of QME Dr. Gregorius. The WCJ provided the parties with additional time in which to file trial briefs, and ordered the matter submitted for decision on May 22, 2024. On June 17, 2024, the WCJ issued the F&O, ordering in relevant part the appointment of Jonathan Rutchik, M.D., as a regular physician pursuant to Labor Code section 5701. The WCJ's Opinion on Decision notes that while the WCJ found the opinions of QME Dr. Gregorius to be well-reasoned, the QME stated in his deposition testimony that he was not an expert, and that the QME's reports and testimony did not rise to the level of substantial evidence.
Appointed as regular physician to provide opinion on apportionment with expertise in thoracic outlet syndrome, to develop the record further after QME's apportionment opinion was rejected as not substantial evidence.
The WCJ appointed Dr. Rutchik as a regular physician with expertise in thoracic outlet syndrome to provide a substantial apportionment opinion after rejecting the QME's analysis.
From the decision · page 2The parties have selected F. Karl Gregorius, M.D., as the QME in neurosurgery. On April 24, 2024, the parties proceeded to trial. The parties stipulated therein to applicant's injury as having arisen out of and in the course of employment, and to injury to the bilateral wrists, elbows, and in the form of thoracic outlet syndrome. (Minutes of Hearing (Minutes), dated April 24, 2024, at p. 2:8.) The parties further stipulated, in relevant part, to the scheduled rating of the reporting of QME Dr. Gregorius, and to applicant's entitlement to future medical care to the bilateral wrists, elbow, and for applicant's thoracic [outlet] syndrome. (Id. at p. 2:38.) The sole issue framed by the parties was the "applicable apportionment" of QME Dr. Gregorius. The WCJ provided the parties with additional time in which to file trial briefs, and ordered the matter submitted for decision on May 22, 2024. On June 17, 2024, the WCJ issued the F&O, ordering in relevant part the appointment of Jonathan Rutchik, M.D., as a regular physician pursuant to Labor Code section 5701. The WCJ's Opinion on Decision notes that while the WCJ found the opinions of QME Dr. Gregorius to be well-reasoned, the QME stated in his deposition testimony that he was not an expert, and that the QME's reports and testimony did not rise to the level of substantial evidence.
Physician Newkirk opined that thoracic outlet syndrome was 100% industrially related.
The QME deferred to Dr. Newkirk as an expert in thoracic outlet syndrome mechanism, and Dr. Newkirk opined the condition was fully industrially related.
From the decision · page 6In addition, during his deposition, Dr. Gregorius repeatedly indicated his was not an "expert" in the mechanics of Thoracic Outlet Syndrome (TOS) and indicated that physical therapists and proper treating physicians should be deferred to. One of those physicians was Dr. Newkirk. In his report dated 4/25/21 (Applicant's Exhibit 1) Dr. Newkirk opined that the TOS was 100% industrially related.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
To be substantial evidence on apportionment, a medical opinion must be framed in reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning for conclusions.
The WCJ applied this standard to find the QME's apportionment opinion not substantial evidence due to inconsistency and lack of expertise.
From the decision · page 7In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Escobedo) (Appeals Bd. en banc), we held that "to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, 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." (Id. at p. 621.) We further noted that the apportionment opinion of the evaluating physician must address "how" and "why" nonindustrial and prior industrial factors are presently causing permanent disability. (Id. at p. 622; see also E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687].)
What proof carried it
The evidence the panel weighed, by kind.
QME Dr. Gregorius' apportionment analysis was inconsistent and changed over time, diminishing its substantiality as evidence.
From the decision · page 6More specifically, Dr. Gregorius does not even mention apportionment in his first three reports (Joint AA-Joint CC.) In his fourth report (Joint DD) he opines that the entire award should be apportioned to her cumulative trauma claim. (See page 6 of Joint DD). Thereafter, during his deposition on 3/1/21, Dr. Gregorius changed his opinion on apportionment to 50% pre-existing. (Joint HH pgs. 49- 52) This change was apparently based upon review of records indicating that applicant had similar symptoms dating back to at least 2006 and possibly beyond. While interesting, the relevance of that factor seems to dull when one realizes that this applicant has worked the same job with the same duties and thus same industrial exposures since at least 2001.
QME Dr. Gregorius testified he was not an expert in the mechanics of thoracic outlet syndrome and deferred to physical therapists and treating physicians.
From the decision · page 6In addition, during his deposition, Dr. Gregorius repeatedly indicated his was not an "expert" in the mechanics of Thoracic Outlet Syndrome (TOS) and indicated that physical therapists and proper treating physicians should be deferred to. One of those physicians was Dr. Newkirk. In his report dated 4/25/21 (Applicant's Exhibit 1) Dr. Newkirk opined that the TOS was 100% industrially related.
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