Parker, Kern, Nard & Wenzel
Legal Updates


Requirement of Further Developing the Record For A Complete Medical History: Am Kang

States v. WCAB, 2015 80 Cal. Comp. Cases 79, the Court of Appeal annulled the WCAB’s decision of a compensable psychiatric injury after determining the psychiatric report relied upon by the parties and the WCAB did not constitute substantial medical evidence because the report failed to address the orthopedic AME’s report and findings of 50 percent apportionment of the orthopedic injury to non-industrial factors.

The applicant, Am Kang, sustained an admitted back injury in December of 2010 while employed with Radiator United States as a driver. He additionally claimed a psychiatric injury in the form of sleep disorder. Id. at p. 81.

The orthopedic agreed medical evaluator (AME) Dr. David Pechman issued a report dated February 28, 2012, apportioning 50 percent of the orthopedic injury to preexisting nonindustrial metabolic bone disease. Dr. Rodney Bluestone, the qualified medical evaluator (QME) in the field of rheumatology, confirmed the diagnosis of metabolic bone disease, but could not determine a cause. A further supplemental report from him never addressed causation. Dr. Bluestone did opine however, he had a “strong impression that this patient [was] suffering from significant depression, which probably lower[ed] his pain threshold and which [might] impact the quality of his sleep, resulting in greater fatigue and a sleep-and-arousal disorder.” Id. at p. 82.

Ana L. Nogales, Ph.D., evaluated Kang as a secondary treating physician in psychology. She noted in her report dated September 14, 2012 she did not receive medical or employment records for review. In regard to causation, she found that the “percentage of total causation of Mr. Kang’s current mental disorder is estimated at a higher level than the legal threshold of industrial causation of 50 [percent].” Dr. Nogales’s report held no discussion of Dr. Pechman’s orthopedic opinions or findings of apportionment. Ibid.

The matter was heard in September of 2013. Five of Dr. Nogales’s progress reports and the September 14, 2012 report were submitted into evidence. There were no other reports submitted on the issue of causation of Kang’s psychiatric condition. In December of 2013, the WCJ issued a findings of fact that Kang sustained an industrial injury to his back and psyche in the form of sleep disorder. The WCJ relied on the medical reports and testimony from Kang. Ibid.

Defendant Radiator USA petitioned for reconsideration, arguing as to the psychologist’s report that without a review of past and present medical records and a true history of applicant’s past emotional events, there was no support for a finding of industrial psychiatric injury. Moreover, Defendant argued Dr. Bluestone was not a psychiatrist/psychologist or a sleep specialist, and thus his opinions of Kang’s depression and sleep problems was not substantial medical evidence. Defendant offered no evidence to rebut or impeach the medical reports. Reconsideration was denied by the appeals board on March 17, 2014. The appeals board found Dr. Nogales’s report to constitute substantial medical evidence based on extensive discussions with Kang coupled with the WCJ’s opinion Kang was a credible witness. Ibid.

The Second District Court of Appeal granted Radiator USA’s petition for writ of review. It ultimately held that Dr. Nogales’s report was not competent medical evidence on the cause of Kang’s psychiatric injury because Dr. Nogales was completely unaware of Dr. Pechman’s apportionment of 50 percent of the orthopedic injury to nonindustrial underlying bone disease. She did not provide an opinion based on a complete medical history, inclusive of Dr. Pechman’s findings. Id. at p. 83 and 84.

The Court of Appeal further specifically noted it was the appeals board’s affirmative duty to develop the record pursuant to Labor Code Sections 5908 and 5701 along with supportive case law. “The medical reporting in this case had a serious flaw which the appeals board should have recognized and, had the responsibility, to cure. Dr. Nogales's report could not sustain a finding of industrial causation because her evaluation, as acknowledged in her report, was not yet complete. Instead of focusing on the lack of medical evidence on the issue of causation, the appeals board noted that the defendant had not offered any evidence rebutting or impeaching the medical reporting, i.e., Dr. Nogales's report. While the defendant could have acted more vigorously, it is also true that the appeals board ‘may not leave undeveloped matters which it acquired, specialized knowledge should identify as requiring further evidence.’ (West v. Industrial Acci. Com. supra, 79 Cal. App. 2d at p. 719.)” Id. at p. 85. The decision of the appeals board was thereby annulled and the matter remanded for further proceedings consistent with the Court of Appeal’s opinion.

Although the holding in Radiator United States v. WCAB, 2015 80 Cal. Comp. Cases 79 is an unpublished opinion, this case serves as a significant reminder to parties to ensure the record is fully developed on all issues before a matter is taken to trial. Without a review of all medical records, a report such as Dr. Nogales’s in the above case is not substantial medical evidence, especially when she did not address the report from the orthopedic AME and his opinion on apportionment of the orthopedic injury. When such an omission occurs, the WCAB has discretionary authority under Labor Code 5908, 5701 and 5706 to develop the record. [See also Contra Costa County v. WCAB, 2014 Cal. Wrk. Comp. LEXIS 169, wherein the WCAB and Court of Appeal confirmed while medical reports submitted by applicant suggested that
applicant may have sustained industrial psychiatric injury, the PQME and another medical evaluator were not provided complete set of applicant's relevant medical records, personnel file, or materials from workplace investigation, that, therefore, their reports did not constitute substantial evidence and that further development of the record was necessary.]