ADJ17141277 · January 31, 2024

The Appeals Board found that the defendant did not show substantial prejudice or irreparable harm from the neurological QME evaluation being conducted, and that the QME report from Dr. Esfahane was not substantial evidence because he lacked medical records to review. Therefore, the applicant is entitled to the neurology QME evaluation.

From the decision · page 3Based on our review of the record, it appears that the parties engaged in proper discovery procedures regarding both injury claims until defendant received the report from QME Dr. Esfahane stating that the June 13, 2022 dog bite did not cause applicant's June 20, 2022 stroke. (Def. Exh. F, p. 15.) Defendant then canceled the scheduled neurological examination by QME Dr. Maasumi. Without addressing the issue of whether defendant's conduct was appropriate, it must be noted that Dr. Esfahane specifically stated he was not provided any medical records and/or test reports to review.(Def. Exh. F, p. 12.) Thus, his report is not substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, there is no evidence in the record indicating that a neurological examination/report would not enable the WCJ to determine whether applicant's employment was a cause of applicant's stroke.

Dr. Esfahane's report was not substantial evidence because he did not have medical records or test reports to review.

Favours Applicant prevailed

This undermined defendant's argument against the neurology QME evaluation and supported the applicant's entitlement to the evaluation.

From the decision · page 3Based on our review of the record, it appears that the parties engaged in proper discovery procedures regarding both injury claims until defendant received the report from QME Dr. Esfahane stating that the June 13, 2022 dog bite did not cause applicant's June 20, 2022 stroke. (Def. Exh. F, p. 15.) Defendant then canceled the scheduled neurological examination by QME Dr. Maasumi. Without addressing the issue of whether defendant's conduct was appropriate, it must be noted that Dr. Esfahane specifically stated he was not provided any medical records and/or test reports to review.(Def. Exh. F, p. 12.) Thus, his report is not substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, there is no evidence in the record indicating that a neurological examination/report would not enable the WCJ to determine whether applicant's employment was a cause of applicant's stroke.

Found the stroke was not related to the claimed industrial injury and that the stroke did not arise out of employment, but noted no medical records or test reports were available for review.

The report was found not to be substantial evidence because the physician did not have medical records to review.

From the decision · page 2On July 9, 2023, QME Dr. Esfahane examined applicant, and took a history, but he noted that, "No medical records and test reports are available for me to review." (Def. Exh. F, Alireza Esfahane, M.D., July 9, 2023, p. 12.) Dr. Esfahane concluded:

Applicant entitled to be evaluated by this neurology QME; defendant's cancellation of the appointment was not upheld.

The Appeals Board ordered the evaluation to proceed despite defendant's cancellation.

From the decision · page 1Defendant filed a Petition for Reconsideration; Petition for Removal (Petition) seeking reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on November 17, 2023, wherein the WCJ found in pertinent part that applicant is entitled to be evaluated by neurology qualified medical examiner (QME) Kasra Maasumi, M.D.

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy rarely exercised by the Appeals Board and requires showing substantial prejudice or irreparable harm if removal is not granted.

The Appeals Board applied this standard to deny removal of the neurology QME evaluation.

From the decision · page 3Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cal. Code Regs., tit. 8, § 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 600, fn. 5 [71 Cal.Comp.Cases 155, 157, fn. 5]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 281, fn. 2 [70 Cal.Comp.Cases 133, 136, fn. 2].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a); Cortez, supra; Kleemann, supra.)

Dr. Esfahane's report lacked medical records and test reports for review, making it not substantial evidence.

From the decision · page 3Based on our review of the record, it appears that the parties engaged in proper discovery procedures regarding both injury claims until defendant received the report from QME Dr. Esfahane stating that the June 13, 2022 dog bite did not cause applicant's June 20, 2022 stroke. (Def. Exh. F, p. 15.) Defendant then canceled the scheduled neurological examination by QME Dr. Maasumi. Without addressing the issue of whether defendant's conduct was appropriate, it must be noted that Dr. Esfahane specifically stated he was not provided any medical records and/or test reports to review.(Def. Exh. F, p. 12.) Thus, his report is not substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Also, there is no evidence in the record indicating that a neurological examination/report would not enable the WCJ to determine whether applicant's employment was a cause of applicant's stroke.