Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4060(b)
Reports from secondary treating physicians are admissible treatment reports under Labor Code section 4060(b).
The Board found Dr. Yu's reports admissible as treatment reports from a secondary treating physician.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued
by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint
F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course
of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report
of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation
for the fibromyalgia. Further development of the record was ordered with a regular physician per
Labor Code2 section 5701. (Lab. Code, § 5701.)
Labor Code section 4605
An employee may provide a consulting or attending physician's report at their own expense, admissible unless solely to rebut a panel QME.
Applicant consulted Dr. Yu at her own expense for treatment, not solely to rebut the panel QME.
From the decision · page 11Applicant testified at trial that she saw Dr. Yu through her private insurance. She was
permitted to obtain a report from a consulting or attending physician at her own expense per section
4605. Pursuant to Batten, when an employee consults with a physician at his or her own expense,
in the course of seeking medical treatment, the resulting reports are admissible unless they were
obtained solely to rebut the panel QME. The record here indicates that applicant was referred to
Dr. Yu by Dr. Taylor to confirm the diagnosis of fibromyalgia, for which Dr. Taylor was providing
treatment. The record therefore shows that applicant consulted with Dr. Yu in the course of
seeking medical treatment, not solely to rebut the panel QME, Dr. Bluestone. Even taking into
account Dr. Yu's undated report (Applicant's Exhibit No. 7), there is insufficient evidence that Dr.
Yu has actually been provided with Dr. Bluestone's reports. Dr. Yu's opinions cannot be
considered obtained solely as a rebuttal of QME opinions he has not seen.
Labor Code section 5701
Labor Code section 5701 allows further development of the record with a regular physician.
The Board ordered further development with regular physicians for disputed issues.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Order (Joint F&O) issued
by the workers' compensation administrative law judge (WCJ) on February 11, 2020. By the Joint
F&O, the WCJ found in relevant part that applicant sustained injury arising out of and in the course
of employment (AOE/COE) in the form of fibromyalgia. She further found that the medical report
of Dr. David Yu is admissible as an exhibit and is substantial evidence on the issue of causation
for the fibromyalgia. Further development of the record was ordered with a regular physician per
Labor Code2 section 5701. (Lab. Code, § 5701.)
Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159
Substantial evidence means relevant, credible, and reasonable evidence with probative force on the issues.
The Board applied the substantial evidence standard to medical opinions on causation.
From the decision · page 13We therefore must consider
whether there remains substantial evidence in the record in support of the finding that applicant's
fibromyalgia is industrially caused.
It is also well established that decisions by the Appeals Board must be supported by
substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd.
(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza, supra; LeVesque v. Workmen's Comp.
Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence'
means evidence which, if true, has probative force on the issues. It is more than a mere scintilla,
and means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood
Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48
Cal.Comp.Cases 566], emphasis removed and citations omitted.) To constitute substantial
evidence "... a medical opinion must be framed in terms of reasonable medical probability, it
Labor Code section 5701
Defendants bear the burden of proof on apportionment to non-industrial disability.
Defendants failed to prove non-industrial apportionment of lumbar spine disability.
From the decision · page 22Defendants have the burden of proof on apportionment to non-industrial PD. The only non
industrial apportionment pertains to applicant's lumbar spine disability. Dr. Klassen opined in his
February 19, 2015 report (Joint Exhibit Y) on Page 16 as follows