What the panel ordered
Order of February 9, 2022 rescinded; matter returned to trial level for further proceedings and decision consistent with opinion
Petition for Reconsideration granted by the Appeals Board to further study factual and legal issues; decision after reconsideration issued rescinding prior order and returning matter to trial level for further proceedings
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.
The Board found that the existing record did not contain substantial medical opinions to establish which injury caused the current need for treatment for the lumbar spine, thoracic spine, and right shoulder, and that further medical development was necessary before determining joint and several liability and administration of claims.
From the decision · page 5On the existing record it is not possible to establish which injury, or injuries, caused the current need for treatment to the lumbar spine, thoracic spine, and right shoulder. Although medical care was awarded for body parts in both ADJ3318010 and ADJ9800810, it is necessary to determine the current cause of treatment for each body part.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The existing medical record did not contain substantial medical opinions to establish which injury caused the current need for treatment for the lumbar spine, thoracic spine, and right shoulder.
Favours neutral
Without substantial medical opinions on causation of treatment, the Board could not determine joint and several liability or administration of claims and thus remanded for further development.
From the decision · page 5On the existing record it is not possible to establish which injury, or injuries, caused the current need for treatment to the lumbar spine, thoracic spine, and right shoulder. Although medical care was awarded for body parts in both ADJ3318010 and ADJ9800810, it is necessary to determine the current cause of treatment for each body part.
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.
In October 2015, Dr. Kasman stated that treatment of the thoracolumbar spine should remain with the June 1998 injury, as noted by Dr. Snook, but later walked back from providing opinions for the orthopedic injuries.
Dr. Kasman's October 2015 report acknowledged that treatment of the thoracolumbar spine should remain with the June 1998 injury, but he later walked back from providing opinions for the orthopedic injuries.
From the decision · page 4It appears the clearest statement of record regarding the cause of treatment for the thoracic and lumbar spine is from agreed medical evaluator (AME) Dr. Kasman. It is acknowledged that AME Dr. Kasman later walked back from providing opinions for the orthopedic injuries, however in the October 2015, report he states "Therefore, treatment of the thoracolumbar spine should remain with the June 1998 injury as cogently and correctly noted by Dr. Snook." (Joint Exhibit 1, Report of AME Michael Kasman, M.D., October 2, 2015, page 145.) This statement appears derived from AME Dr. Kasman's medical digest of the September 18, 2014 report of panel qualified medical evaluator (PQME) Dr. Snook.
Dr. Snook's September 2014 report stated that the medical record separates the two pain conditions and that care and treatment under the previous injury should continue, but it was unclear which body parts were associated with which condition.
Dr. Snook's report separated the two pain conditions and recommended continuing care under the previous injury, but did not clearly associate body parts with conditions, making causation unclear.
From the decision · page 4The actual September 18, 2014, PQME Dr. Snook report regarding future medical care states however, "It would appear to me that the medical record clearly separates the two pain conditions and that care and treatment under the previous injury should continue as has been agreed to previously and has been provided by Dr. Conard and associates." (Joint Exhibit 2, Report of PQME Lee T. Snook, M.D., September 18, 2014, page 83.) This statement is problematic because PQME Snook provides several diagnoses which include pain: chronic pain due to trauma, chronic pain syndrome, low back pain, pain disorder related to psychological factors, and myalgia/myositis, myofascial pain. Also listed are additional diagnoses that could be reasonably linked to pain conditions. (Joint Exhibit 2, at page 82.) It is not clear which body parts are associated with which condition. It is even more tenuous to try and associate treatment for a body part with an injury date.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Insurance Code section 1063.1(c)(9)(A)
Insurance Code section 1063.1(c)(9)(A) regarding coverage by other insurance and CIGA's duties
The Board applied this statute to determine that CIGA has no duty to pay claims covered by other insurance and that joint and several liability applies when there is coverage by a solvent insurer.
From the decision · page 3Insurance Code section 1063.1(c)(9)(A) provides that "'[c]overed claims' [do] not include any claim to the extent it is covered by any other insurance of a class covered by this article available to the claimant or insured." As such, in cases where there is coverage by a solvent insurer, CIGA has no duty to pay and discharge any claims. Case and statutory law make clear that CIGA is not an "insurer" in the ordinary sense as CIGA is not an insurance company, its duties are not co-extensive with the insolvent insurer's obligations, and it does not stand in the shoes of the insolvent insurer. (Isaacson v. California Ins. Guarantee Assn. (1988) 44 Cal.3d 775, 786; Baxter Healthcare Corp. v. California Ins. Guarantee Assn. (2000) 85 Cal.App.4th 306, 309-310; American Nat. Ins. Co. v. Low (2000) 84 Cal.App.4th 914, 920; Mercury Ins. Co. v. Enterprise Rent-A-Car Co. of Los Angeles (2000) 80 Cal.App.4th 41, 51; Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (Garcia) (1997) 60 Cal.App.4th 548, 556 [62 Cal.Comp.Cases 1661, 1666- 1667]; California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (Conces) (1992) 10 Cal.App.4th 988, 996- 997 [57 Cal.Comp.Cases 660, 664-666]; Denny's Inc. v. Workers' Comp. Appeals Bd. (Bachman) (2003) 104 Cal.App.4th 1433, 1438 [68 Cal.Comp.Cases 1, 4].)
What proof carried it
The evidence the panel weighed, by kind.
Credibility of medical opinions by Dr. Kasman and Dr. Snook was considered, but opinions were cursory and unclear on causation of treatment for overlapping injuries.
From the decision · page 4The present record does not contain substantial medical opinions regarding causation of treatment for the lumbar spine, thoracic spine, and right shoulder. The medical opinions that do touch on causation of treatment are cursory, stale and primarily focused on apportionment of disability. While often causation of medical treatment will reasonably follow causation of impairment, such connections are not a given. Analysis of treatment causation requires informed medical opinion.
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About this page
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