Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)
A 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 its conclusions.
The QME's opinion was found conclusory and lacking substantial evidence because it did not adequately address the applicant's ongoing symptoms and need for future medical care.
From the decision · page 4II.
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).) "When the foundation of an expert's testimony is determined to be inadequate as a matter
of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions."
(People v. Bassett (1968) 69 Cal.2d 122, 139.)
Multiple issues exist with the reporting in this matter. First, the QME took hip range of
motion measurements of 30 degrees external rotation. This clearly warrants a rating pursuant to
Table 17-9 of the AMA Guides, p. 537. Thus, the QME's opinion that applicant sustained zero
permanent disability is clearly in error.
Next, the QME's opinion on future medical care does not constitute substantial evidence
as the opinion is both conclusory and self-contradictory. The QME's opinion is conclusory because
People v. Bassett (1968) 69 Cal.2d 122, 139
When the foundation of an expert's testimony is inadequate as a matter of law, the tribunal is not bound by apparent conflicts created by bare conclusions.
The QME's rating of zero permanent disability was found legally inadequate due to failure to rate range of motion limitation, thus not substantial evidence.
From the decision · page 4II.
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).) "When the foundation of an expert's testimony is determined to be inadequate as a matter
of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions."
(People v. Bassett (1968) 69 Cal.2d 122, 139.)
Multiple issues exist with the reporting in this matter. First, the QME took hip range of
motion measurements of 30 degrees external rotation. This clearly warrants a rating pursuant to
Table 17-9 of the AMA Guides, p. 537. Thus, the QME's opinion that applicant sustained zero
permanent disability is clearly in error.
Next, the QME's opinion on future medical care does not constitute substantial evidence
as the opinion is both conclusory and self-contradictory. The QME's opinion is conclusory because
Labor Code section 5909
Labor Code section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.
The Appeals Board complied with the 60-day requirement in granting reconsideration.
From the decision · page 3Preliminarily, we note that former section 5909 provided that a petition for reconsideration
was deemed denied unless the Appeals Board acted on the petition within 60 days from the date
of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant
part that: