ADJ1805830 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Applicant and denied by WCAB panel after review of WCJ report.

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.

Substantial evidence / credibilityDefendant prevailedbilateral shoulders · arms · elbows · wrists

The WCJ and WCAB panel found the AME Dr. Beth Bathgate's opinion to be substantial medical evidence because it was based on reasonable medical probability, followed AMA Guidelines, addressed the effects on activities of daily living, and provided a well-reasoned apportionment analysis, unlike the PTP's opinion.

From the decision · page 1For the reasons stated in the WCJ's report, we agree that the opinion of agreed medical examiner (AME) Beth Bathgate, M.D., is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) Moreover, the WCJ properly relied upon the opinion of the AME, who the parties presumably chose because of the AME's expertise and neutrality. The WCJ was presented with no good reason to find the AME's opinion unpersuasive, and we also find none. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The parties agreed to utilize Dr. Beth Bathgate as the AME due to her expertise and neutrality.

Favours Defendant prevailed

The WCJ and WCAB gave presumptive weight to the AME's opinion because the parties chose her as the neutral expert.

From the decision · page 1For the reasons stated in the WCJ's report, we agree that the opinion of agreed medical examiner (AME) Beth Bathgate, M.D., is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) Moreover, the WCJ properly relied upon the opinion of the AME, who the parties presumably chose because of the AME's expertise and neutrality. The WCJ was presented with no good reason to find the AME's opinion unpersuasive, and we also find none. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

Dr. Bathgate's opinion followed AMA Guidelines, addressed medical history, subjective and objective factors, and provided a well-reasoned apportionment analysis.

Favours Defendant prevailed

This thorough and reasoned opinion was found to be substantial medical evidence supporting the WCJ's findings.

From the decision · page 5When the reports are actually carefully evaluated for substantiality, AME Dr. Bathgate is the only opinion that follows the AMA Guidelines. Dr. Bathgate goes through in detail, the medical history, subjective factors and objective factors in arriving at her conclusions. She cites the AMA Guides. She discusses how the injury effects the Petitioner's Activities of Daily Living. She has a well-reasoned discussion of how and why the Petitioner's other injuries involving her cervical injury impacted the findings of impairment in this case. Her conclusions concerning apportionment are well reasoned and explained.

Dr. Murphy's opinion failed to address the effects on activities of daily living and erroneously concluded no apportionment despite acknowledging cervical injury effects.

Favours Defendant prevailed

This failure rendered Dr. Murphy's opinion not substantial medical evidence, supporting the WCJ's rejection of it.

From the decision · page 5The PTP Dr. Murphy does not discuss how the Petitioner's injuries affected her Activities of Daily Living. She chose not to testify on her behalf on that issue as well. Dr. Murphy while acknowledging the effect of the cervical injury and the cervical radiculopathy and its effects on the wrist impairment, then erroneously concludes that there is no apportionment. That is not substantial medical evidence. It also explains why his report rates higher in this matter.

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.

AMERelied upon

Dr. Bathgate's opinion was found to be substantial medical evidence, following AMA Guidelines, addressing medical history, subjective and objective factors, effects on activities of daily living, and providing a well-reasoned apportionment analysis of 50% impairment caused by cervical injury and 50% by wrist injury.

The WCJ and WCAB panel relied on Dr. Bathgate's opinion as substantial medical evidence because it was well-reasoned, based on reasonable medical probability, and addressed apportionment properly.

From the decision · page 1For the reasons stated in the WCJ's report, we agree that the opinion of agreed medical examiner (AME) Beth Bathgate, M.D., is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) Moreover, the WCJ properly relied upon the opinion of the AME, who the parties presumably chose because of the AME's expertise and neutrality. The WCJ was presented with no good reason to find the AME's opinion unpersuasive, and we also find none. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

PTPRejected

Dr. Murphy's opinion was found not to be substantial medical evidence because it failed to address the effects on activities of daily living and erroneously concluded no apportionment despite acknowledging cervical injury effects.

Dr. Murphy's opinion was rejected as substantial medical evidence because it did not address activities of daily living and had erroneous apportionment conclusions.

From the decision · page 5The PTP Dr. Murphy does not discuss how the Petitioner's injuries affected her Activities of Daily Living. She chose not to testify on her behalf on that issue as well. Dr. Murphy while acknowledging the effect of the cervical injury and the cervical radiculopathy and its effects on the wrist impairment, then erroneously concludes that there is no apportionment. That is not substantial medical evidence. It also explains why his report rates higher in this matter.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922

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

The WCJ and WCAB applied this standard to find the AME's opinion substantial medical evidence.

From the decision · page 1For the reasons stated in the WCJ's report, we agree that the opinion of agreed medical examiner (AME) Beth Bathgate, M.D., is substantial medical evidence upon which the WCJ properly relied. To be considered substantial evidence, a medical opinion "must be predicated on reasonable medical probability." (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also 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. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) Moreover, the WCJ properly relied upon the opinion of the AME, who the parties presumably chose because of the AME's expertise and neutrality. The WCJ was presented with no good reason to find the AME's opinion unpersuasive, and we also find none. (See Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775

The agreed medical examiner's opinion should ordinarily be followed unless there is good reason to find it unpersuasive.

The WCJ and WCAB relied on this precedent to uphold the AME's opinion as substantial medical evidence.

From the decision · page 4The Petitioner ignores several very important factors. First and foremost, the parties agreed to utilize Dr. Bathgate as an AME. The AME's opinion should be followed unless it is not substantial medical evidence. "...we begin by presuming that the agreed medical examiner has been chosen by the parties because of his expertise and neutrality. Therefore his opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive." Power v. WCAB 179 Cal. App. 3d 775.

ADJ1805830 · November 12, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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