California's Workers' Compensation Appeals Board rules on what's substantial evidence

The relevant and considered opinions of one doctor, though inconsistent with other medical opinions, could amount to substantial evidence, a panel of the Workers’ Compensation Appeals Board of California said in a recent case.

Defenders Direct, Inc. – the defendant in the case of Farrell vs. Defenders Direct, Inc., and Travelers Property Casualty Company of America; American Zurich Insurance Company – employed the applicant as a security advisor. The applicant claimed lower back injury on Sept. 28, 2016 and on Aug. 12, 2017.

In September 2017, Dr. Marc Friedman, the orthopedic qualified medical examiner, evaluated the applicant and diagnosed him with lumbar strain probably related to his Sept. 28, 2016 industrial injury, exacerbated by his Aug. 12, 2017 industrial injury. He said that the applicant’s condition was not permanent and stationary.

In July 2018, Dr. Friedman conducted a re-evaluation finding that the applicant:

• fell within “Category II” of the diagnosis related estimates under the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides)
• had significant limitations relating to activities of daily living such as difficulty sitting, standing, and climbing stairs
• had a combined 11% whole person impairment rating

In May 2019, Dr. Alexander Angerman, the orthopedic agreed medical examiner, examined the applicant. He said that he should have the opportunity to review the entire medical file, given that the applicant allegedly underwent an updated lumbar spine MRI scan and additional lumbar epidural injections but failed to provide those records. Thus, Dr. Angerman deferred his orthopedic opinions pending receipt of additional information.

Later, Dr. Angerman gave a supplemental report noting that he still did not receive the requested information about the lumbar spine MRI scan and about the additional lumbar epidural injections. He reserved the right to amend his orthopedic opinions upon receipt of new information.

Last September, the workers' compensation administrative law judge found that the applicant’s Sept. 28, 2016 industrial lower back injury caused 8% permanent disability, while his Aug. 12, 2017 industrial lower back injury caused 13% permanent disability.

The applicant filed a petition seeking reconsideration. He argued that Dr. Angerman’s reports were substantial evidence that should form the basis for his disability, while Dr. Friedman’s reports were not.

The panel of California’s Workers’ Compensation Appeals Board denied the reconsideration that the applicant requested.

First, the panel held that Dr. Angerman’s opinions were not substantial evidence since they were not based on an adequate medical history. Dr. Angerman repeatedly told the parties that he needed to review the complete medical records, but he did not receive those records.

Next, the panel determined that Dr. Friedman’s reports were substantial evidence and were an appropriate basis to decide the disability that the applicant’s industrial injuries caused.

Just because the applicant disagreed with the physician’s opinion, this did not mean that the opinion was incorrect, the panel noted. The application of the AMA Guides in deciding an injured worker’s impairment was a medical question within the evaluators’ expertise, the panel added.