What the panel ordered
Petition for reconsideration granted; Findings and Order rescinded; matter returned to WCJ for further proceedings.
Applicant sought reconsideration of the WCJ's Findings and Order issued April 2, 2021, which found no injury AOE/COE to her eyes; the WCJ's decision was rescinded and the matter was returned to the WCJ for further proceedings.
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 record lacked substantial evidence to determine if applicant's VKHD was caused by her employment; the matter was remanded for further development including evaluation by an immunologist or infectious disease specialist.
From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) We are returning this matter to the WCJ for the parties to develop the record so that it contains substantial evidence to support a determination of whether applicant's VKHD constitutes an injury AOE/COE. Under the circumstances of this matter, we recommend the parties have applicant evaluated by an internal medicine infectious disease/immunology AME or in the alternative that the WCJ appoint a regular physician of that specialty. (Lab. Code, § 5701.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
VKHD is an autoimmune disease and causation by environmental exposure is not established in the record.
Favours Defendant prevailed
This lack of substantial evidence on causation required remand for further medical evaluation.
From the decision · page 5Dr. Sami's report and testimony are quite clear that although the VKHD causes ophthalmology symptoms, it is an autoimmune disease. He acknowledged that immunology is not his area of expertise and that he would defer to the opinions of an immunologist. Thus, it appears that the record as it now stands is not adequate to make a final determination regarding the threshold issue of whether applicant's VKHD constitutes an injury AOE/COE.
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.
Diagnosed applicant with VKHD as autoimmune disease; opined exposure to wildfire smoke was not the causative agent; deferred to immunologist for further opinion on causation.
Dr. Sami's report and deposition were central to the WCJ's initial decision and the WCAB's order for further proceedings due to lack of substantial evidence on causation.
From the decision · page 2AME Dr. Sami evaluated applicant on February 17, 2020. Dr. Sami took a history, reviewed the medical record and performed an ophthalmic examination. In the Impressions/ Diagnosis section of his report Dr. Sami stated:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5952(d); Hegglin v. WCAB (1971); Granado v. WCAB (1970); Escobedo v. Marshalls (2005)
An award, order, or decision must be supported by substantial evidence; medical opinion is not substantial evidence if based on inaccurate information, incorrect legal theories, or speculation.
The WCAB applied this standard to evaluate the AME's medical opinion and the evidence on causation of VKHD.
From the decision · page 4Any 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].) A medical opinion is not substantial evidence if it is based on information that is not accurate, on facts no longer germane, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, [33 Cal.Comp.Cases 647]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's belief that smoke exposure caused symptoms is not medical evidence and does not constitute proof of causation.
From the decision · page 5Finally, notwithstanding the fact that we are rescinding the F&O, we must note that applicant makes various arguments for which there is no factual or legal basis. For example, the argument that "because applicant was diagnosed with VKHD after the smoke from the wildfire hurt her eyes, the smoke caused the VKHD,' is not supported by any evidence. The fact that event "Y" happened after event "X" does not mean that event "Y" was caused by event "X." The argument, "post hoc, ergo propter hoc" i.e. it happened after this, therefore it was caused by this, has no factual and/or rational basis in this matter. Also, the argument that applicant's belief that "her exposure to smoke and inhalant toxins at the workplace caused her symptoms is evidence that the smoke actually caused her symptoms," appears to be premised only on applicant's "belief." There is no evidence that applicant is a medical expert and in turn her "belief" does not constitute factual evidence. Making arguments that are "indisputably without merit" may be deemed bad faith actions and counsel is again reminded that failure to comply with the Appeals Board Rules may be sanctionable conduct. (Cal. Code Regs. tit. 8, § 10421.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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