ADJ117564 · January 20, 2026

The Appeals Board granted the lien claimant's petition for reconsideration but deferred the final decision pending further review of the merits and the entire record.

From the decision · page 1Lien claimant David Silver, M.D., seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on October 31, 2025, wherein the WCJ found in pertinent part that: the Appeals Board previously found that applicant did not sustain injury in the form of fibromyalgia, complex regional pain syndrome and reflex sympathetic dystrophy;1 lien claimant provided treatment to applicant for those non-industrial conditions; defendant has no liability for payment for the treatment of these non-industrial body parts or conditions; and the issues of penalties are moot. She ordered that the lien was dismissed.

Applicant did not sustain injury AOE/COE for Fibromyalgia, CRPS, and RSD as previously found and upheld

Favours Defendant prevailed

This prior finding precludes reimbursement for treatment of these non-industrial conditions

From the decision · page 3Dr. David Silver, M.D., lien claimant, hereinafter "Petitioner", filed a timely, verified Petition for Reconsideration to the October 31, 2025, Findings and Award which reiterated the prior Findings and Award issued by the court on December 17, 2010, subsequently upheld by the Board, that applicant did not sustain injury AOE/COE in the form of Fibromyalgia, Complex Regional Pain Syndrome (CRPS) and Reflex Sympathetic Dystrophy (RSD), the back or any other part of the spine aside from the neck, internal, head, scalp, headaches, nervous system, nervous strain or lower extremities. Thus, the court found that Dr. Silver's treatment of the applicant's internal complaints related to Fibromyalgia and Complex Regional Pain Syndrome provided on a lien basis were also not reimbursable and all issues brought forth by Petitioner regarding further interest, increased penalty and additional penalties, were moot as injury AOE/COE had already been decided over a decade ago, e.g. collateral estoppel.

AME Dr. Kuschner found no CRPS or RSD and that diagnosis was erroneous

Favours Defendant prevailed

The court adopted this medical opinion as substantial evidence to deny reimbursement

From the decision · page 4The court found that applicant's claims for Fibromyalgia, CRPS and RSD were part of a non-industrial "Undifferentiated Somatoform Disorder versus a Factitious Disorder," as explained by orthopedic AME Dr. Stuart Kuschner and psychiatric QME Dr. William Sullivan. (Exhibits WCAB X and Y, and Defendant's E). The AME stated that applicant did not, in fact, have a pain disorder like CRPS or RSD because the applicant did not fit the criteria and was exhibiting improvement with treatment, therefore, the diagnosis was erroneous. (WCAB Exhibit Y, Deposition of Dr. Kuschner, 10/9/2007, 8:2-25, 9:1-10.) The court adopted the reasoning and was upheld by the Board upon Reconsideration. (Findings and Award 12-17-2010, EAMS Doc. ID 22873603, Opinion on Decision 12-17-2010, EAMS Doc. ID 22873624; WCAB Opinion and Decision After Reconsideration 10-05-2012, EAMS Doc. ID 43222922).

QME Dr. Sullivan corroborated that applicant's pain was due to a non-industrial psychiatric condition

Favours Defendant prevailed

Supported the finding that treatment was not for an industrial injury

From the decision · page 4The court found that applicant's claims for Fibromyalgia, CRPS and RSD were part of a non-industrial "Undifferentiated Somatoform Disorder versus a Factitious Disorder," as explained by orthopedic AME Dr. Stuart Kuschner and psychiatric QME Dr. William Sullivan. (Exhibits WCAB X and Y, and Defendant's E). The AME stated that applicant did not, in fact, have a pain disorder like CRPS or RSD because the applicant did not fit the criteria and was exhibiting improvement with treatment, therefore, the diagnosis was erroneous. (WCAB Exhibit Y, Deposition of Dr. Kuschner, 10/9/2007, 8:2-25, 9:1-10.) The court adopted the reasoning and was upheld by the Board upon Reconsideration. (Findings and Award 12-17-2010, EAMS Doc. ID 22873603, Opinion on Decision 12-17-2010, EAMS Doc. ID 22873624; WCAB Opinion and Decision After Reconsideration 10-05-2012, EAMS Doc. ID 43222922).

Applicant's testimony was not credible due to cognitive issues and poor memory

Favours Defendant prevailed

Reduced weight of applicant's testimony on injury causation

From the decision · page 7A prior finding of lack of credibility especially as it pertains to the issue of AOE/COE, absent proof of improper bias by the trier of fact, cannot be undone, and, has no real bearing on the instant matter. Though applicant testified that she believes that Petitioner's treatment was for an industrial condition, the testimony of a layperson does not override that of the AME or QME. Furthermore, the applicant at one point personally acknowledged to the court she has significant cognitive issues, and her memory is "horrid," both of which would make her a poor historian and the court would not have relied upon her testimony on the issue of AOE/COE even if had jurisdiction to do so. (Summary of Evidence 2/15/2023, 4:7-11).

Provided treatment for non-industrial conditions (Fibromyalgia, CRPS, RSD) on lien basis; treatment not reimbursable as injury AOE/COE was previously found not sustained for these conditions.

The court found that the applicant did not sustain injury AOE/COE for Fibromyalgia, CRPS, and RSD; treatment by Dr. Silver for these non-industrial conditions was not reimbursable.

From the decision · page 3Dr. David Silver, M.D., lien claimant, hereinafter "Petitioner", filed a timely, verified Petition for Reconsideration to the October 31, 2025, Findings and Award which reiterated the prior Findings and Award issued by the court on December 17, 2010, subsequently upheld by the Board, that applicant did not sustain injury AOE/COE in the form of Fibromyalgia, Complex Regional Pain Syndrome (CRPS) and Reflex Sympathetic Dystrophy (RSD), the back or any other part of the spine aside from the neck, internal, head, scalp, headaches, nervous system, nervous strain or lower extremities. Thus, the court found that Dr. Silver's treatment of the applicant's internal complaints related to Fibromyalgia and Complex Regional Pain Syndrome provided on a lien basis were also not reimbursable and all issues brought forth by Petitioner regarding further interest, increased penalty and additional penalties, were moot as injury AOE/COE had already been decided over a decade ago, e.g. collateral estoppel.

Found no pain disorder like CRPS or RSD; diagnosis was erroneous; applicant showed improvement with treatment.

The AME's opinion that the applicant did not have CRPS or RSD was adopted by the court and upheld by the Board.

From the decision · page 4The court found that applicant's claims for Fibromyalgia, CRPS and RSD were part of a non-industrial "Undifferentiated Somatoform Disorder versus a Factitious Disorder," as explained by orthopedic AME Dr. Stuart Kuschner and psychiatric QME Dr. William Sullivan. (Exhibits WCAB X and Y, and Defendant's E). The AME stated that applicant did not, in fact, have a pain disorder like CRPS or RSD because the applicant did not fit the criteria and was exhibiting improvement with treatment, therefore, the diagnosis was erroneous. (WCAB Exhibit Y, Deposition of Dr. Kuschner, 10/9/2007, 8:2-25, 9:1-10.) The court adopted the reasoning and was upheld by the Board upon Reconsideration. (Findings and Award 12-17-2010, EAMS Doc. ID 22873603, Opinion on Decision 12-17-2010, EAMS Doc. ID 22873624; WCAB Opinion and Decision After Reconsideration 10-05-2012, EAMS Doc. ID 43222922).

Corroborated that the applicant's pain was related to a non-industrial psychiatric condition, including history of domestic violence and alcoholism.

The QME's corroboration supported the finding that the pain was due to a non-industrial psychiatric condition.

From the decision · page 4The court found that applicant's claims for Fibromyalgia, CRPS and RSD were part of a non-industrial "Undifferentiated Somatoform Disorder versus a Factitious Disorder," as explained by orthopedic AME Dr. Stuart Kuschner and psychiatric QME Dr. William Sullivan. (Exhibits WCAB X and Y, and Defendant's E). The AME stated that applicant did not, in fact, have a pain disorder like CRPS or RSD because the applicant did not fit the criteria and was exhibiting improvement with treatment, therefore, the diagnosis was erroneous. (WCAB Exhibit Y, Deposition of Dr. Kuschner, 10/9/2007, 8:2-25, 9:1-10.) The court adopted the reasoning and was upheld by the Board upon Reconsideration. (Findings and Award 12-17-2010, EAMS Doc. ID 22873603, Opinion on Decision 12-17-2010, EAMS Doc. ID 22873624; WCAB Opinion and Decision After Reconsideration 10-05-2012, EAMS Doc. ID 43222922).

Labor Code sections 3202.5, 5705

Burden of proof rests on lien claimant to prove validity of lien and injury by preponderance of evidence

Lien claimant must show treatment was reasonably required to cure or relieve industrial injury; lien claimant stands in shoes of applicant for burden of proof

From the decision · page 5The fact that Petitioner was an authorized primary treating physician is irrelevant insofar as it treated on a lien basis, and any assertion of reimbursement is tied to the applicant's recovery. (Moelleken v. Workers Comp. App. Bd. (Brock) (2012) 77 Cal. Comp. Cases 753 (writ denied). Distinguished from medical-legal costs, a pure treatment lien for a condition that was deemed non-industrial, or non-existent, or misdiagnosed, can be parceled out as not reimbursable. It is a well-established rule that a lien claimant stands in the shoes of the applicant when it comes to burden of proof (Labor Code § 3202.5, Labor Code § 5705; Torres v. AJC Sandblasting (2012) 77 Cal. Comp. Cases 1113 (appeals board en banc); Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal. Comp. Cases 1588, 1592 (appeals board en banc)). However, in this situation, the issue of AOE/COE was thoroughly litigated 15 years prior and under collateral estoppel; the court has no jurisdiction to revisit the issue at this

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

Findings must be based on substantial evidence; AME opinions given more weight unless unpersuasive

AME opinion was relied upon over lien claimant's opinion as it was neutral and expert

From the decision · page 4The opinions of Petitioner and the testimony of the applicant, who is not a physician, do not controvert the opinion of the Agreed Medical Examiner. All findings of the WCAB must be based on substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637 [35 Cal.Comp.Cases 16]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 [Appeals Bd. en banc].) When weighing medical reports, an AME is given more weight presuming the doctor has been chosen by the parties because of his expertise and neutrality, and his opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [224 Cal.Rptr. 758]. See also Pearson Ford v. Workers' Comp. Appeals Bd. (2017) 16 Cal.App.5th 889 [225 Cal.Rptr.3d 557].) Notwithstanding the opinions and assertions of Dr. Silver, which do not bear the same neutrality and are in fact self-serving, the Board upheld the finding, and applicant did not file a writ. The issue of no injury AOE/COE to Fibromyalgia, CRPS/RSD, the back or any other part of the spine aside from the neck, and no injury AOE/COE to internal, head, scalp, headaches nervous system, nervous strain or lower extremities, remains as established findings of fact.

Applicant's testimony about treatment for industrial condition was not credible due to cognitive issues and poor memory

From the decision · page 7A prior finding of lack of credibility especially as it pertains to the issue of AOE/COE, absent proof of improper bias by the trier of fact, cannot be undone, and, has no real bearing on the instant matter. Though applicant testified that she believes that Petitioner's treatment was for an industrial condition, the testimony of a layperson does not override that of the AME or QME. Furthermore, the applicant at one point personally acknowledged to the court she has significant cognitive issues, and her memory is "horrid," both of which would make her a poor historian and the court would not have relied upon her testimony on the issue of AOE/COE even if had jurisdiction to do so. (Summary of Evidence 2/15/2023, 4:7-11).