ymcgavin@socal.rr.com
Senior Member
Posts: 1351
Joined: Jun 2002
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Tuesday February 24, 2009 7:07 PM
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Hi Jon and Jake,
To quote from the brief that got the Commissioner's to reverse themselves in Sierra Pacific:
In Kiewit Sons v. IAC, (1965) 30 CCC 188, the Third District Court of Appeal was faced with a medical dispute, and the WCJ resolved the dispute in the absence of any substantial medical report that the injuries were industrially caused. The aggrieved defendant petitioned for reconsideration, and the WCAB affirmed the WCJ. The defendant then sought a writ of review, and the appellate court annulled and remanded. As is germane to the instant matter, the opinion from the Justices of the Third District Court of Appeal stated:
"Where an issue is exclusively a matter of scientific medical knowledge, expert evidence is essential to sustain a commission finding; lay testimony or opinion in support of such a finding does not measure up to the standard of substantial evidence. (City & County of San Francisco v. Industrial Acc. Com., supra, 117 Cal.App.2d at pp. 459-460; Guarantee Ins. Co. v. Industrial Acc. Com., 88 Cal.App.2d 410, 413 [199 P.2d 12]; Pacific Emp. Ins. Co. v. Industrial Acc. Com., 47 Cal.App.2d 494, 500-501 [118 P.2d 334].) Expert testimony is necessary "where the truth is occult and can be found only by resorting to the sciences." (State Comp. Ins. Fund v. Industrial Acc. Com., 195 Cal. 174, 184 [231 P. 996].)"
(Ibid, at page 192)
"Back disabilities in particular shout loudly for expert advice. No human ailment has produced more medicolegal headaches than the aching back. This delicately articulated structure of nodulated bones, cushioned by cartilaginous bodies and gelatinous material, interlaced by the complex and sensitive fibers of the cerebrospinal nervous system and held in array by strands and cords of muscular and ligamentous tissue, is vulnerable to a vast and bewildering variety of traumatic, pathological, deteriorative ailments and neurotic manifestations, singly and in diverse combinations. Precise diagnosis often baffles neurologists and orthopedists. In assessing the respective roles of trauma and predisposing conditions and of objective and subjective complaints, subtle value judgments may be unavoidable. In the face of this anatomical, physiological and psychological intricacy, semantically dubious, pseudomedical jargon infiltrates the conflux of medicine and jurisprudence. Whiplash, traumatic arthritis, traumatic neurasthenia and railroad spine are solecisms in current or past fashion. These verbal conveniences tempt the medically untrained into complacent substitution of simplicity for complexity. In a field which forces the experts into hypothesis, unaided lay judgment amounts to nothing more than speculation."
(Ibid, at page 193)
Thus, although Finklang may only be a mere panel decision, reported in the CWCR, there is indeed higher compelling authority on the issue of a layperson, such as a WCJ, interpreting ACOEM. Simply put, a WCJ can indeed weigh competing medical reports and choose which is the more substantial. (Place) However, in the absence of any medical reporting addressing a medical dispute, a WCJ would be remiss in substituting his/her lay opinion. Expert testimony is necessary "where the truth is occult and can be found only by resorting to the sciences."
Gee, if a WCJ opined on WPI or apportionment, absent a medical report addressing the disputed issue, the opinion from the WCJ is not substantial evidence.
I encounter this issue day-after-week-after-month-after-year. Routinely, neither the PTP, a QME, nor an AME, addresses the reasonableness of a TENS unit per LC 4600(b). When all medical reports are silent in regards to the provision of a TENS, we simply get a supplemental report from one of those physicians --- at the expense of the defendant.
York McGavin
ymcgavin@socal.rr.com 
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