ADJ8706562 · August 10, 2026

The Appeals Board found that evidence obtained after the MSC was improperly admitted without due process, requiring a new MSC and further proceedings.

No medical opinion addressed causation of orthopedic injury; therefore, no finding of industrial injury to orthopedic body parts could be made.

From the decision · page 9If applicant’s argument were followed, we would be compelled to exclude the evidence obtained by applicant after the close of the MSC, which included the January 2026 ratings report of Dr. Borsada, which provided applicant’s impairment for sleep disorder. In this case both parties continued to conduct discovery after the close of the MSC. B. Compensability of Orthopedic Body Parts 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.) Applicant argues that a finding of industrial injury should issue as to applicant’s orthopedic body parts. Applicant argues that the reporting of Dr. Greenfield should be followed in this regard, however, Dr. Greenfield issued no opinion as to whether applicant suffered an orthopedic injury

Evidence obtained after the MSC was admitted without an order admitting it and without due process.

Favours Applicant prevailed

This violated the parties' right to due process and required a new MSC and further proceedings.

No medical opinion addressed causation of orthopedic injury; Dr. Greenfield deferred to rheumatology.

Favours Defendant prevailed

Without a medical opinion on causation, no finding of industrial injury to orthopedic body parts could be made.

From the decision · page 9If applicant’s argument were followed, we would be compelled to exclude the evidence obtained by applicant after the close of the MSC, which included the January 2026 ratings report of Dr. Borsada, which provided applicant’s impairment for sleep disorder. In this case both parties continued to conduct discovery after the close of the MSC. B. Compensability of Orthopedic Body Parts 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.) Applicant argues that a finding of industrial injury should issue as to applicant’s orthopedic body parts. Applicant argues that the reporting of Dr. Greenfield should be followed in this regard, however, Dr. Greenfield issued no opinion as to whether applicant suffered an orthopedic injury

Initially opined fibromyalgia and resulting impairment were 100% industrial if stress perception agreed; later apportioned 50% industrial and 50% due to underlying connective tissue disease.

Dr. Silverman's apportionment opinion was considered in the context of compensability of orthopedic body parts and fibromyalgia causation.

From the decision · page 4(Id. at pp. 1-2.) Dr. Silverman initially opined that applicant’s fibromyalgia and its resulting impairment was “100% industrial assuming trier of fact agrees with the perception of stress.” (Id. at p. 8.) After reviewing additional medical records, Dr. Silverman modified his opinion on apportionment as follows: I do note a 15-year history of chronic pain diagnosed as fibromyalgia/connective tissue disease with a positive ANA and response to prednisone and hydroxychloroquine with anti-nucleolar and centromere antibodies diagnosed as UCTD (undifferentiated connective tissue disease), and later in October 2020 by Dr. Kao. Joint pain is common in UCTD and fibromyalgia. She does have fibromyalgia as judged by widespread pain, plus 18/18 tender points, positive dolorimetry and compression tests, and meets ACR 2016 criteria. I believe, therefore, we need to consider that the fibromyalgia may be due to two triggering events.

Found no orthopedic injury and deferred to rheumatologist for impairment and causation.

Dr. Greenfield issued no opinion on causation of orthopedic injury, deferring to rheumatology.

From the decision · page 3(Joint Exhibit X1, Report of Jon Greenfield, M.D., August 20, 2020, pp. 1, 4.) Dr. Greenfield found that applicant suffered no orthopedic injury. (Id. at p. 18.) Dr. Greenfield deferred to a rheumatologist stating: “[B]ecause the patient's problems are primarily rheumatological in nature and the treatment of her rheumatological condition has resulted in improvement of her conditions, I believe that impairment is best determined by a rheumatologist. I believe that causation as well should be determined by the rheumatologist.” (Id. at p. 20.) Applicant was seen by rheumatology QME Stuart Silverman, M.D., who authored six reports. (Joint Exhibits X6, X7, X8, X9, X10, and Defendant’s Exhibit A.) Dr. Silverman took a history of applicant’s work stress as follows: the applicant... described herself as a whistleblower who was subjected to harassment by employers.

Assigned 11% impairment due to sleep disturbance.

Dr. Borsada's report was obtained after the MSC and was part of the evidence improperly admitted.

From the decision · page 5Applicant was seen by internal QME Minal Borsada, M.D., who authored two reports. (Joint Exhibits X11, X12.) Dr. Borsada assigned 11% impairment due to sleep disturbance. (Joint Exhibit X11, supra at p. 51.) The WCJ drafted rating instructions which the DEU rated as follows:

Provided psychiatric evaluation with GAF score of 61.

Psychiatric evaluation was part of the medical evidence considered.

From the decision · page 4(Defendant’s Exhibit A, Report of Stuart Silverman, M.D., December 23, 2025, p. 36.) Applicant was seen by psychiatric QME Stephane Johnson, M.D., who authored three reports. (Joint Exhibits X3, X4, X5.) Applicant’s GAF score was 61. (Joint Exhibit X4, Report of QME Stephane Johnson, M.D., September 18, 2020, p. 13.)

LC 5502(d)(3)

Section 5502(d)(3) of the Labor Code requires discovery to close at the MSC and evidence not disclosed thereafter is inadmissible unless due diligence is shown.

The Appeals Board found that evidence obtained after the MSC was improperly admitted without due process, requiring a new MSC and further proceedings.

LC 5908

Section 5908 of the Labor Code allows the Appeals Board to admit evidence in a manner best calculated to ascertain substantial rights but must respect due process.

The Appeals Board emphasized the right to due process in admitting evidence and found the admission of evidence after MSC violated this right.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621

Medical opinion must be based on reasonable medical probability, pertinent facts, adequate examination and history, and supported reasoning to constitute substantial evidence.

No medical opinion addressed causation of orthopedic injury; therefore, no finding of industrial injury to orthopedic body parts could be made.

From the decision · page 9If applicant’s argument were followed, we would be compelled to exclude the evidence obtained by applicant after the close of the MSC, which included the January 2026 ratings report of Dr. Borsada, which provided applicant’s impairment for sleep disorder. In this case both parties continued to conduct discovery after the close of the MSC. B. Compensability of Orthopedic Body Parts 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.) Applicant argues that a finding of industrial injury should issue as to applicant’s orthopedic body parts. Applicant argues that the reporting of Dr. Greenfield should be followed in this regard, however, Dr. Greenfield issued no opinion as to whether applicant suffered an orthopedic injury

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 Appeals Board is not bound by apparent conflicts created by bare conclusions.

The lack of medical opinion on causation of orthopedic injury meant no finding could be made.

From the decision · page 9If applicant’s argument were followed, we would be compelled to exclude the evidence obtained by applicant after the close of the MSC, which included the January 2026 ratings report of Dr. Borsada, which provided applicant’s impairment for sleep disorder. In this case both parties continued to conduct discovery after the close of the MSC. B. Compensability of Orthopedic Body Parts 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.) Applicant argues that a finding of industrial injury should issue as to applicant’s orthopedic body parts. Applicant argues that the reporting of Dr. Greenfield should be followed in this regard, however, Dr. Greenfield issued no opinion as to whether applicant suffered an orthopedic injury

Applicant continued to conduct discovery after the MSC, including attending a QME evaluation in January 2026, indicating discovery was not closed at MSC.

From the decision · page 24, lines 1-3 and 23-25.) While the minutes of hearing note that defendant’s exhibit A, which is the December 23, 2025 report of QME Silverman, was marked for identification, the minutes contain no objection to the admission of any exhibits and contain no order admitting any of the exhibits. According to the minutes of hearing, this matter was set for trial by joint request of the parties in December 2025. (Minutes of Hearing, ADJ13176683, ADJ8706562, December 17, 2025.) However, according to the pre-trial conference statement, “Defendant argues that the cases are not yet ready for trial, as Internal QME Dr. Minal Borsada has not MMI'd the applicant. An appointment has been set with Dr. Borsada on 01/12/26.” (Pre-trial Conference Statement, ADJ13176683, ADJ8706562, December 17, 2025, p. 3.) The pre-trial conference statement is not signed by the MSC judge and contains no notation indicating that it was reviewed prior to setting the matter for trial. Although applicant argues that discovery closed as of the date of the MSC, it appears that applicant continued to conduct discovery after the MSC as she attended an in-person QME evaluation with Dr. Borsada in January 2026. (Joint Exhibit X11, Report of Minal Borsada, M.D., January 12, 2026.)

No order admitting evidence was made; exhibits were marked but not admitted, violating due process rights.