Petition for Reconsideration granted; matter referred for status conference; final decision deferred pending further review.
Issues decided
1
Medical opinions weighed
4
Authorities named
1
District office
Van Nuys
What the panel ordered
Petition for Reconsideration granted; matter referred for status conference; final decision deferred pending further review.
Defendant petitioned for reconsideration of the WCJ's Findings of Fact, Award and Orders issued November 8, 2023; the WCAB granted the petition and deferred final decision pending further review and a status conference.
ADJ13811313 — California WCAB decision · SimilarCase
From the decision · page 3
With respect to the latter, Dr. Wilson initially indicates that the applicant advised her of a
March 23, 2020 specific fall at home in which she injured her right shoulder and arm, and felt pain
in her back, however, she also refers to a March 20, 2020 fall off the stairs at her daughters house.
(Exh. E, report of Lynn Wilson, M.D., August 23, 2021, pp. 2-3).
The medical report of Dr. Gabriel Rubanenko was admitted and relied upon by the WCJ despite defendant's objection.
Favours Applicant prevailed
This report was central to the WCJ's findings on injury and disability, affecting the award and orders.
From the decision · page 3Prior to the election of Dr. Rubanenko, applicant was treating with Tri-City
Health Group. First with Archie Mays, M.D. who left Tri-City and then Scott
Rosenzwig, M.D. wrote a report without examining applicant. Dr. Mays issued a
PR-2 on January 26, 2022, in which he recommends a treatment plan, and that the
Applicant remain off work for six weeks and says the next report is due no later
than six weeks. (Exhibit 3 at pages 99-100.) In April 27, 2022, Dr. Scott
Rosenzwig, M.D. wrote a report without examining the Applicant stating that Tri-
City Health Group/Tri-County Medical had closed and recommended the patient
be referred to another physician for a complete maximal medical improvement
evaluation. (Exhibit 1 at page 3.) It was then that Applicant elected Dr.
Rubanenko, who examined Applicant and found Applicant had reached maximum
medical improvement on August 24, 2022. (Exhibit 2 at page 31.) Dr. Rubanenko
recommended future medical care for exacerbations of her symptoms. Dr.
Rubanenko is currently Applicant's primary treating physicians and will probably
treat her in the future for exacerbations. Since Applicant is permanent and
stationary there is no need for periodic examinations with her primary treating
physician. Just because there is yet to be an exacerbation requiring treatment is no
reason to exclude Dr. Rubanenko's PR-4.
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.
PTPRelied upon
Examined applicant on August 24, 2022, found maximum medical improvement, recommended future medical care for exacerbations.
From the decision · page 3Prior to the election of Dr. Rubanenko, applicant was treating with Tri-City
Health Group. First with Archie Mays, M.D. who left Tri-City and then Scott
Rosenzwig, M.D. wrote a report without examining applicant. Dr. Mays issued a
PR-2 on January 26, 2022, in which he recommends a treatment plan, and that the
Applicant remain off work for six weeks and says the next report is due no later
than six weeks. (Exhibit 3 at pages 99-100.) In April 27, 2022, Dr. Scott
Rosenzwig, M.D. wrote a report without examining the Applicant stating that Tri-
City Health Group/Tri-County Medical had closed and recommended the patient
be referred to another physician for a complete maximal medical improvement
evaluation. (Exhibit 1 at page 3.) It was then that Applicant elected Dr.
Rubanenko, who examined Applicant and found Applicant had reached maximum
medical improvement on August 24, 2022. (Exhibit 2 at page 31.) Dr. Rubanenko
recommended future medical care for exacerbations of her symptoms. Dr.
Rubanenko is currently Applicant's primary treating physicians and will probably
treat her in the future for exacerbations. Since Applicant is permanent and
stationary there is no need for periodic examinations with her primary treating
physician. Just because there is yet to be an exacerbation requiring treatment is no
reason to exclude Dr. Rubanenko's PR-4.
QMERejected
Provided medical reports with some inconsistencies in applicant's injury history; did not address apportionment or impairment for certain body parts.
From the decision · page 3With respect to the latter, Dr. Wilson initially indicates that the applicant advised her of a
March 23, 2020 specific fall at home in which she injured her right shoulder and arm, and felt pain
in her back, however, she also refers to a March 20, 2020 fall off the stairs at her daughters house.
(Exh. E, report of Lynn Wilson, M.D., August 23, 2021, pp. 2-3).
PTPRelied upon
Issued a PR-2 report recommending treatment and off work status for six weeks as of January 26, 2022.
From the decision · page 3Prior to the election of Dr. Rubanenko, applicant was treating with Tri-City
Health Group. First with Archie Mays, M.D. who left Tri-City and then Scott
Rosenzwig, M.D. wrote a report without examining applicant. Dr. Mays issued a
PR-2 on January 26, 2022, in which he recommends a treatment plan, and that the
Applicant remain off work for six weeks and says the next report is due no later
than six weeks. (Exhibit 3 at pages 99-100.) In April 27, 2022, Dr. Scott
Rosenzwig, M.D. wrote a report without examining the Applicant stating that Tri-
City Health Group/Tri-County Medical had closed and recommended the patient
be referred to another physician for a complete maximal medical improvement
evaluation. (Exhibit 1 at page 3.) It was then that Applicant elected Dr.
Rubanenko, who examined Applicant and found Applicant had reached maximum
medical improvement on August 24, 2022. (Exhibit 2 at page 31.) Dr. Rubanenko
recommended future medical care for exacerbations of her symptoms. Dr.
Rubanenko is currently Applicant's primary treating physicians and will probably
treat her in the future for exacerbations. Since Applicant is permanent and
stationary there is no need for periodic examinations with her primary treating
physician. Just because there is yet to be an exacerbation requiring treatment is no
reason to exclude Dr. Rubanenko's PR-4.
PTPRelied upon
Wrote a report without examining applicant, recommended referral for complete MMI evaluation after Tri-City Health Group closed.
From the decision · page 3Prior to the election of Dr. Rubanenko, applicant was treating with Tri-City
Health Group. First with Archie Mays, M.D. who left Tri-City and then Scott
Rosenzwig, M.D. wrote a report without examining applicant. Dr. Mays issued a
PR-2 on January 26, 2022, in which he recommends a treatment plan, and that the
Applicant remain off work for six weeks and says the next report is due no later
than six weeks. (Exhibit 3 at pages 99-100.) In April 27, 2022, Dr. Scott
Rosenzwig, M.D. wrote a report without examining the Applicant stating that Tri-
City Health Group/Tri-County Medical had closed and recommended the patient
be referred to another physician for a complete maximal medical improvement
evaluation. (Exhibit 1 at page 3.) It was then that Applicant elected Dr.
Rubanenko, who examined Applicant and found Applicant had reached maximum
medical improvement on August 24, 2022. (Exhibit 2 at page 31.) Dr. Rubanenko
recommended future medical care for exacerbations of her symptoms. Dr.
Rubanenko is currently Applicant's primary treating physicians and will probably
treat her in the future for exacerbations. Since Applicant is permanent and
stationary there is no need for periodic examinations with her primary treating
physician. Just because there is yet to be an exacerbation requiring treatment is no
reason to exclude Dr. Rubanenko's PR-4.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Decisions of the Appeals Board must be supported by substantial evidence.
The WCAB reviewed the record for substantial evidence and found the need for further development of the record.
From the decision · page 4II.
It 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].) "The term `substantial evidence' means evidence which, if true, has
probative force on the issues. It is more than a mere scintilla, and means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in
nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp.
Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and
citations omitted.)
Decisions of the Appeals Board "must be based on admitted evidence in the
record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476
(Appeals Board en banc).) An adequate and complete record is necessary to understand the basis
for the WCJ's decision. (Lab. Code, § 5313; see also Cal. Code Regs., tit. 8, § 10787.) "It is the
responsibility of the parties and the WCJ to ensure that the record is complete when a case is
submitted for decision on the record.
What proof carried it
The evidence the panel weighed, by kind.
Medical recordsfavours Applicant prevailed
Dispute over admissibility and substantiality of medical reports by Dr. Gabriel Rubanenko and Dr. Lynn Wilson.
From the decision · page 1Petitioner contends that the WCJ erred in admitting the medical report of Gabriel
Rubanenko, M.D. dated August 24, 2022 into evidence asserting it is an improperly obtained
medical legal report obtained by applicant for the purpose of rebutting the medical opinions of the
PQME Lynn Wilson, M.D., and thus should be deemed inadmissible per Labor Code sections
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