What the panel ordered
Petition for reconsideration granted; June 18, 2021 Findings and Orders rescinded; matter returned to WCJ for further proceedings and new decision.
Applicant sought reconsideration of the WCJ's Findings and Orders issued June 18, 2021, which denied injury AOE/COE and ordered applicant to take nothing; the WCJ report recommended denial of reconsideration; the WCAB granted reconsideration, rescinded the F&O, and returned the matter to the WCJ for further proceedings.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 WCJ's denial was based on a QME report that lacked the complete medical record and did not address injury AOE/COE specifically, thus not substantial evidence; the WCAB granted reconsideration to allow supplementation of the medical record and a new QME opinion.
From the decision · page 1Applicant, in pro per, seeks reconsideration of the Findings and Orders (F&O), issued by the workers' compensation administrative law judge (WCJ) on June 18, 2021, wherein the WCJ found in pertinent part that applicant did not sustain an injury arising out of and occurring in the course of employment (AOE/COE) to her left knee on February 20, 2020, or August 17, 2020. The WCJ ordered that applicant take nothing by way of her injury claim.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Sciaroni did not have the complete medical record and did not address injury AOE/COE specifically.
Favours Applicant prevailed
Her report was not substantial evidence and could not support the WCJ's denial of the injury claim.
From the decision · page 3The parties in a worker's compensation case are to provide the QME with the medical file. (Cal. Code Regs., tit. 8, § 35(a).) As noted above, the only medical report reviewed by QME Dr. Sciaroni was the September 2, 2020 evaluation report from Jason Justin, PA-C. Applicant testified that she received treatment from various providers. Dr. Sciaroni was not provided the complete medical record to review.
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.
Evaluated applicant on December 3, 2020; diagnosis was lower back and left lower extremity pain of uncertain etiology; did not have complete medical record and did not specifically address injury AOE/COE; report not substantial evidence.
Did not have complete medical record and did not specifically address injury AOE/COE as required by Labor Code section 4605.
From the decision · page 2BACKGROUND Applicant claimed injury to her left knee while employed by defendant as a bank teller. On December 3, 2020, orthopedic qualified medical examiner (QME) Laura N. Sciaroni, M.D., evaluated applicant. Dr. Sciaroni examined applicant, took a history, and reviewed the September 2, 2020 evaluation report from Jason Justin, PA-C. The diagnosis (Impression) was, "Lower back and left lower extremity pain of uncertain etiology." (Joint Exh. 1, Dr. Sciaroni, December 3, 2020, p. 9.) The parties proceeded to trial on February 10, 2021, the issues identified by the parties included injury AOE/COE, the date of the claimed injury, and the parts of body injured. (Minutes of Hearing and Summary of Evidence (MOH/SOE), February 10, 2021, p. 2.) The matter was continued to March 30, 2021. The WCJ's summary of applicant's testimony included: Applicant testified that she had been treated by Dr. Dean Thompson and that she had been referred to Dr. Koch. (MOH/SOE, March 30, 2021, p. 2.) The applicant first obtained treatment from her private physician at Kaiser. She got an x-ray on August 17, 2020. (MOH/SOE, March 30, 2021, p. 4.) "[S]he was obtaining treatment from Kaiser..." (MOH/SOE, March 30, 2021, p. 6.) "She believes a Concentra report states her injury was work related." (MOH/SOE, March 30, 2021, p. 7.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5952(d)
Any award, order, or decision of the Appeals Board must be supported by substantial evidence.
The WCJ's decision was not supported by substantial evidence due to incomplete medical record and inadequate QME report.
From the decision · page 2DISCUSSION Any 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 facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess, and the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (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
Lab. Code, 4605
A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.
Dr. Sciaroni did not have complete medical record and thus her report was not substantial evidence.
From the decision · page 3Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion. (Lab. Code, § 4605.)
McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc)
Sections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings.
The Board ordered supplementation of the medical record and a new QME report to address injury AOE/COE.
From the decision · page 3In our en banc decision, McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (Citations)." (Id at p. 141.) We also stated that before directing augmentation of the medical record we must establish, as a threshold matter, that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete. "Where the medical record requires further development either after trial or submission of the case for decision," the medical record should first be supplemented by physicians who have already reported in the case. (Id., at pp. 139, 142.) Under the circumstances of this matter, it is appropriate
What proof carried it
The evidence the panel weighed, by kind.
QME report by Dr. Sciaroni lacked complete medical record and did not address injury AOE/COE specifically
From the decision · page 3The parties in a worker's compensation case are to provide the QME with the medical file. (Cal. Code Regs., tit. 8, § 35(a).) As noted above, the only medical report reviewed by QME Dr. Sciaroni was the September 2, 2020 evaluation report from Jason Justin, PA-C. Applicant testified that she received treatment from various providers. Dr. Sciaroni was not provided the complete medical record to review.
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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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