ADJ13282654 · December 21, 2023

The WCJ found that Dr. Wilker's reports lacked substantial medical evidence due to deficient medical history analysis and incomplete clinical examination, and that the QME's testimony showed bias and unwillingness to reconsider his opinions, justifying replacement.

From the decision · page 1Defendant seeks reconsideration of the October 10, 2023 Findings of Fact and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a medical assistant on July 18, 2019, sustained industrial injury to the lumbar spine and right wrist. The WCJ found good cause to replace Qualified Medical Evaluator (QME) Moshe Wilker, M.D.

Dr. Wilker's reports lacked substantive analysis of applicant's medical history and clinical examination.

Favours Applicant prevailed

This deficiency led the WCJ to find the reports were not substantial medical evidence, justifying replacement of the QME.

From the decision · page 7Here, the WCJ has determined that the reporting of the QME is not substantial evidence, as it lacks a substantive analysis of applicant's medical history, findings on clinical examination, or discussion supporting the physician's conclusions. We agree. The initial report of Dr. Wilker offers minimal discussion of the applicant's presenting condition, no analysis of her relevant medical history or its relationship to the mechanism of injury and resulting impairment. The report describes no measurements taken, and provides no insight into the clinical examination, if any. The report offers conclusions but fails to substantiate those conclusions through discussion of the applicant's clinical presentation or medical history.

Dr. Wilker testified he would not change his opinion regardless of applicant's explanations or reevaluation.

Favours Applicant prevailed

This demonstrated bias and unwillingness to reconsider, supporting the WCJ's finding of good cause for replacement.

From the decision · page 7However, the WCJ further observes that the QME's testimony has essentially foreclosed the possibility of an open and unbiased reevaluation of the facts and the parties' contentions. The QME has repeatedly testified that he is unlikely to change his opinion, irrespective of the facts or explanations advanced by applicant. When asked if applicant's explanation of the circumstances

Surveillance video contradicted applicant's claim of using a walker outdoors since the fall.

Favours Defendant prevailed

This discrepancy undermined applicant's credibility and influenced the QME's opinion and the WCJ's findings.

From the decision · page 2On October 13, 2021, Dr. Wilker reviewed surveillance films of applicant and noted "a

Diagnosed lumbar radiculitis and right wrist ganglion cyst; found industrial causation and impairment; initially noted applicant used a walker outdoors since the fall; later questioned applicant's credibility based on surveillance; opined applicant reached maximum medical improvement and could return to work without restrictions; increased apportionment to nonindustrial factors; unwilling to change opinion despite explanations.

The WCJ found Dr. Wilker's reports lacked substantial medical evidence and noted his testimony showed bias and unwillingness to reconsider, supporting replacement.

From the decision · page 2medical record and diagnosed lumbar radiculitis and a right wrist ganglion cyst. The QME found

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning in support of conclusions.

The WCJ found Dr. Wilker's reports lacked substantial medical evidence as they failed to analyze medical history and clinical findings adequately.

From the decision · page 6It 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 v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... 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." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and

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

Medical reports and opinions are not substantial evidence if based on erroneous facts, inadequate histories or examinations, or speculation.

The WCJ determined Dr. Wilker's reports were deficient and lacked substantial evidence due to inadequate medical history and examination and biased testimony.

From the decision · page 7examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Surveillance video contradicted applicant's claim of using a walker outdoors since the fall, undermining credibility.

From the decision · page 2On October 13, 2021, Dr. Wilker reviewed surveillance films of applicant and noted "a