Lab. Code, § 3208.1
A cumulative injury is one 'occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.'
PQME's standard requiring disability or need for treatment on last day of work is incorrect; cumulative injury does not require such evidence on a specific day.
From the decision · page 13This analysis misses the mark as a cumulative injury is one "occurring as repetitive
mentally or physically traumatic activities extending over a period of time, the combined effect of
which causes any disability or need for medical treatment." (Lab. Code, § 3208.1.) There is no
requirement that disability or need for treatment be evident in the medical records on a specific
day. Under the standard applied by PQME Dr. McGahan, there would be no need for expert
medical opinion as the trier of fact would simply be called upon to determine if there was existing
medical evidence that medical treatment or work restrictions were due to an industrial injury at the
time of the last day of work. Such is not the case.
Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]
Medical reports and opinions are not substantial evidence if they are based on inadequate medical histories and examinations, or on incorrect legal theories.
PQME's opinion was not substantial evidence due to inadequate history and incorrect legal theory.
From the decision · page 14(Exhibit H, deposition PQME Dr. McGahan, February 26, 2025, p. 27, lns 4-12.)
It is clear that in formulating his opinions, PQME Dr. McGahan did not take a full history
of applicant's repetitive job duties.
As noted above, PQME Dr. McGahan also states "there were no workers' compensation
claims filed to my knowledge." (Exhibit C, PQME Dr. McGahan, July 27, 2024, p. 21.) This
despite the fact the record refers to multiple claims, and includes a January 19, 1999 Employee's
Claim for Workers' Compensation Benefits (DWC Form 1), claiming a January 15, 1999 back
injury. (Exhibit 4, PDF p. 34.) This is not an inconsequential error.
A decision must be based on admitted evidence in the record and must be supported by
substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd.
(1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].) "Medical reports and opinions are not
substantial evidence if they are known to be erroneous, or if they are based on facts no longer
germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical
opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture
or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36
Cal.Comp.Cases 93].)