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It was a dark and stormy night, meaning that I was taking a break from my usual Manhattan to enjoy a Dark and Stormy, just what the doctor ordered for a warm autumn evening.1

I was letting my (stubbornly pink) hair down after a long day in trial. My adversary was the ever-obnoxious Newt Newbie, whose hubris and narcissism combined with his failure to adequately prepare and overall lack of knowledge of the law made him both a pain and a treat to deal with. Unless he had accidentally stumbled on a sound legal theory, he was most assuredly sunk most of the time, but refused to recognize it until he lost at trial.

Our case involved a pet shop employee, Ms. Melanie Daniels, who alleged a specific injury to the lumbar spine and left shoulder which resulted from a bizarre bird attack. The bird had managed to escape its cage and swooped down in an attempt to peck at Ms. Daniels. She fled the store and sought shelter from the attack in a nearby vintage phone booth that just so happened to be outside the store. In a rush of adrenaline, she hurt her shoulder and low back trying to force shut the stubborn phone booth door.

The panel QME had identified an injury to the lumbar spine and left shoulder which rated to 13% permanent disability for the specific injury after apportionment. In contrast, the primary treating physician’s report rated to 38% permanent disability, but failed to include a discussion of the medical records or applicant’s medical history which included a non-industrial but also bird-related boating accident from a few years prior.

Newt had argued at trial that the panel QME report I intended to rely upon was not substantial medical evidence, but could not articulate much more reasoning than he disagreed with the doctor’s findings. It was time for Mr. Newbie to learn the basics of what makes a report substantial medical evidence, and where his arguments would surely prove to have failed him once the Findings and Award issued.

In my trial brief (it’s always a great idea to write a brief!) I outlined the flaws in applicant counsel’s assertion that the report was not substantial, and also pointed out how weak the treater’s reporting was and why that report could not legally constitute substantial medical evidence.

Any award of the Appeals Board must be “supported by substantial evidence” per Labor Code §5952(d). There is no definition within the California Labor Code instructing what constitutes substantial evidence or substantial medical evidence. There are requirements enumerated in Labor Code §4628 and in the Workers’ Compensation Appeals Board Rules of Practice and Procedure (Rules) in Title 8, Chapter 4.5, Subchapter 2, Article 11. Evidence, Rule 10682. Physicians’ Reports as Evidence of the California Code of Regulations for a medical legal report to be admissible, but even if all these factors are met a report still may not be substantial.

How can that be, you ask? Allow me to take you on a trip through time, loyal Home Bar patron. Over the years case law has come to define what the concept of substantial medical evidence means for the purposes of an award in workers’ compensation. A medical report can only be considered substantial if the facts relied upon by the physician are true.

In an oldie but a good decision of the California Supreme Court from 1947, Minnie West v. Industrial Accident Commission and Cora A. Best, 12 Cal. Comp. Cases 86 (Cal. App. May 16, 1947), the applicant had sustained a number of prior injuries to the same body part which were not disclosed to the reporting doctor. As a result, the Supreme Court ruled that the “report contains no medical history of respondent prior to the fall of the swing and is palpably based upon a superficial and inadequate medical examination of respondent. Accordingly it should be disregarded on account of its unsatisfactory nature and because it is at variance with the whole current of expert evidence,” and the applicant’s award was annulled.2

Similarly, in the 2012 Appeals Board decision Catrina Williams v. Diversified Photo/Supply, 2012 Cal. Wrk. Comp. P.D. LEXIS 545, although the medical record did adequately support a finding of injury to the applicant’s neck and bilateral upper extremities, there was insufficient medical evidence to support a claim of injury to their liver or psyche. The underlying medical reporting finding these injuries were based on the applicant’s self-reported history without a review of their medical records, and as the applicant was explicitly found to not be a credible witness, those medical reports were not considered substantial evidence.

A medical report can also not be considered substantial if it rests on “surmise, speculation, conjecture or guess” as determined by the California Court of Appeal in their 1989 decision in Thomas T. Bracken v. Workers’ Comp. Appeals Bd., 214 Cal. App. 3d 246 at 256. In Bracken, the applicant had a heart attack at work, which was followed by a subsequent heart attack 18 days later, shortly followed by two strokes. One of the reporting doctors originally opined that the heart attacks were not industrially related but that they did precipitate the strokes, but then changed their opinion regarding the causation of the strokes, speculating as to other risk factors that may have caused them without any sound basis.

This should not be meant to convey that a doctor cannot commit any level of guesswork or inference, so long as their findings are based on reasonable medical probability. In the 2018 Appeals Board decision Farrha Alaeddin v. State Compensation Insurance Fund, 2018 Cal. Wrk. Comp. P.D. LEXIS 395, the opinion from the Agreed Medical Evaluator that the applicant suffered a stroke on an industrial basis due to medications taken for headaches related to work stress was based on reasonable medical probability. The doctor’s opinion in this instance was aided by the credibility of witness testimony confirming applicant’s use of medications leading up to the stroke, unlike in Williams.

However, the line for reasonable inferences can only be pushed so far, as doctors can find themselves in trouble when they choose to create a narrative on their own. For example, in the 2019 Appeals Board decision Jane Ellis v. California Department of Social Services, 2019 Cal. Wrk. Comp. P.D. LEXIS 450, the orthopedic Agreed Medical Evaluator based his opinion in part on assumptions made about the current medications being taken by the applicant without actually seeing a current list of medications she was taking! The Appeals Board rescinded the WCJ’s finding in favor of the applicant and remanded the matter back to trial level for further development.

So where does all this leave us, the parties to a case? Typically a consistent, confidently-written, and well-informed report is likely to be considered substantial medical evidence so long as it meets the basic requirements of the Labor Code. If the doctor is missing a key piece of information, or admits that their opinions are not well founded or based on more than a reasonable inference, it is probably not substantial.

Newt had once again shot himself in the foot by giving me an opening to create a thorough discussion of what constitutes “substantial medical evidence” because it highlighted the deficiencies of the primary treating physician’s (PTP) report. That report failed to consider a relevant medical history and the doctor did not review the relevant medical records. I was sure Newt would not enjoy reading my trial brief as much as I enjoyed writing it but for sure it would further his education in our wonderful world of workers’ comp.


All characters at my home bar are fictional and the storyline is simply a product of my animated imagination.

As the California Supreme Court stated in Bracken “an expert opinion is no stronger than the facts upon which it is based.” Being able to determine those facts and what does and does not constitute substantial medical evidence takes a skilled attorney, as you are working to see what an applicant reported to the physician, what reports and records were reviewed by the reporting physician in making their opinion/report and if the reporting used reasonable medical probability in making their conclusions about the health of the applicant.

We’re still making our own doubles. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 Tis an ol’ maritime tale that the Dark ’n’ Stormy originated from a ginger beer factory in Bermuda that was run by the British Royal Naval Officer’s Club, not too long after World War I. There sailors discovered that a strapping splash of the local Gosling’s Black Seal rum was an excellent complement to ginger beer. As for the name, it is alleged that a sailor enjoying the cocktail, perhaps two to three sheets to the wind, commented that it was, “The color of a cloud only a fool or a dead man would sail under.” But I digress.

2 A precursor to the Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB), the California Industrial Accident Commission was brought into being in 1914 thanks to the Boynton Act, which was California’s first compulsory workers’ compensation law. Contrary to popular belief, Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, was not there to witness the signing of the law.

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