ADJ11764709 — California WCAB decision

ADJ11764709 · March 1, 2022

The WCAB rescinded the prior Findings and Orders, deferred the issues of psychiatric injury and injury to other body parts in case ADJ11764709 and injury AOE/COE in case ADJ11764682, found defendant did not meet burden to bar compensation, and ordered further record development with AME/IME evaluations as needed.

Issues decided

Medical opinions weighed

Authorities named

District office

San Bernardino

What the panel ordered

Defendant sought reconsideration of the WCJ's Joint Findings and Orders issued on September 8, 2021, which found applicant sustained psychiatric injury AOE/COE and deferred other injury issues; the WCJ ordered striking of QME Ghannam's reports as not substantial evidence. The WCAB after reconsideration rescinded the F&O and deferred injury issues for further development, returning the matter to the WCJ.

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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.

Psyche AOE/COEDeferredhead · psyche · nervous system · body systems · stress

The issue of injury AOE/COE in case ADJ11764682 was deferred for further development due to insufficient evidence.

From the decision · page 10(2) the applicant, claims industrial injury while employed on September 5, 2018, in case number ADJ11764682, as a Child Custody Recommending Counselor, in San Bernardino, California, by Superior Court of California, County of San Bernardino, who was permissibly self-insured and whose workers' compensation insurance administrator was Acclamation-Sacramento. The issue of injury AOE/COE is deferred.

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.

QMERejected · psychology

Initially opined applicant sustained cumulative psychiatric injury AOE/COE with predominant industrial causation; later testimony inconsistent and lacking substantiality; did not properly apportion injury components as required.

The WCAB found Dr. Ghannam's reports and deposition testimony inconsistent with applicant's testimony and his initial report, lacking substantial evidence on injury AOE/COE, and flawed understanding of cumulative trauma versus specific injury.

From the decision · page 7As stated by the WCJ in the Opinion on Decision, in his initial report, it appears that Dr. Ghannam described applicant as having a cumulative psychiatric injury, predominately caused by her work. (App. Exh. 3, pp. 5 - 6.) He subsequently testified that the cause of applicant's psychiatric injury was:

PTPGiven great weight · psychology

Diagnosed depressive disorder; opined applicant sustained cumulative psychiatric injury AOE/COE based on examination and history; reports constitute substantial evidence.

The WCAB dissent found Dr. Frazier's opinions based on adequate examination and history, constituting substantial evidence of cumulative psychiatric injury AOE/COE.

From the decision · page 2Applicant was initially seen by treating psychologist Dr. Frazier on September 21, 2018. (App. Exh. 4-C, L. Scott Frazier, Ph.D., October 19, 2018.) In the report Dr. Frazier noted that applicant's description of her work for defendant included:

PTPRejected · psychology

Reports not substantial evidence due to lack of review of prior psychiatric treatment records.

The WCAB majority found Dr. Silverstein's reports lacked substantial evidence as they did not consider applicant's prior psychiatric treatment records.

From the decision · page 7However, we must note that, whether a report, or deposition testimony, is substantial evidence is a determination regarding the weight of the evidence, not its admissibility. (Lab. Code, § 4628, Cal. Code Regs., tit. 8, § 10862(c); Gaytan v. Workers' Comp. Appeals Bd., (2003) 109 Cal. App. 4th 200, 213 [68 Cal.Comp.Cases 693]; see also Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658, 43 Cal.Rptr.3d 434.) Thus, Dr. Ghannam's reports and deposition transcripts may remain in the trial record. Upon return, the WCJ continues to have the option to consider the issue of the opinions of Dr. Ghannam in relation to Labor Code section 139.2(d)(2).

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 (Appeals Board en banc)

A medical opinion must be based on pertinent facts, adequate examination and accurate history, and must set forth the basis and reasoning in support of conclusions to be substantial evidence.

Applied to evaluate the substantiality of medical opinions in this case.

From the decision · page 7To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and the reasoning in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].)

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

A medical opinion is not substantial evidence if based on facts no longer germane, inadequate histories or examinations, incorrect legal theories, or speculation.

Applied to reject medical opinions lacking substantial evidence due to inadequate history or examination.

From the decision · page 7To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and accurate history, and it must set forth the basis and the reasoning in support of the conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93].)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to further develop the record where evidence is insufficient to determine an issue.

Applied to order further development of the record in this case.

From the decision · page 8Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to further develop the record where there is insufficient evidence to determine an issue that was submitted for decision. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].)

ADJ11764709 · March 1, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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