TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– The repeal of the treating physician presumption of correctness was not retroactive but was in fact prospective in the sense that it cannot be used to reopen or alter a decision issued prior to the date the bill was enacted. The repeal was limited to decisions issued on or after the April 19, 2004 effective date of SB 899, no matter when the injury actually occurred. Ramon Garcia v. Workers' Compensation Appeals Board, Fashion Fortune Industries 7 WCAB Rptr. 10,042

TREATING–PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– In this case, the primary treating-physician's opinion was properly rebutted by contrary medical evidence. Gustavo Aranda v. Workers' Compensation Appeals Board, Italian Marble & Tile Co. 6 WCAB Rptr. 10,325

TREATING– PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9–SB899 repealed the treating-physician presumption of correctness regardless of date of injury and the repeal of the presumption does not constitute good cause to reopen or rescind, alter or amend any existing order, decision or award of the Workers' Compensation Appeals Board. Suzanne Garnett v. Workers' Compensation Appeals Board, County of Santa Barbara 6 WCAB Rptr. 10,334

TREATING– PHYSICIAN PRESUMPTION– Labor Code §4062.9–The repeal of the treating-physician presumption by SB899 applies to all cases, regardless of the date of injury, but does not constitute good cause to reopen or rescind, alter or amend any order, decision or award. Cheryl Gonzales v. Workers' Compensation Appeals Board, Los Angeles Unified School District 6 WCAB Rptr. 10,336

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– In this case, was the primary treating physician's opinion properly rebutted by contrary medical evidence? Gustavo Aranda v. Workers' Compensation Appeals Board, Italian Marble & Tile Co. 6 WCAB Rptr. 10,150

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– The presumption that the treating physician's findings are correct is rebuttable by a preponderance of medical opinion indicating a different level of impairment. However, the applicant's testimony and a contrary medical opinion are insufficient to rebut the presumption unless a preponderance of specific and substantial evidence establishes that (1) there is a different level of impairment, (2) the treating physician's evaluation is no longer germane, or (3) the contrary evaluation is more thorough than the treating physician's evaluation in light of Board Rule 10606. Betty Simpson v. Workers' Compensation Appeals Board, University of California San Francisco. 6 WCAB Rptr. 10,108

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– In this case, the WCJ found that the treating physician's assessment of applicant's permanent disability was not reasonable and was the basis for overcoming the treating physician presumption of correctness. (See Schneider National v. Workers' Comp. Appeals Bd. (Burson) (2001) 3 WCAB Rptr. 10,174.) [The WCJ accepted the opinion of the defense QME based on his review of surveillance films that "it was obvious that this patient is not being candid and I felt that there is no evidence that this patient has any fibromyalgia syndrome."] Aura Flores v. Workers' Compensation Appeals Board, Patricio Najera. 5 WCAB Rptr. 10,360

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– The presumption of correctness of the opinion of the treating physician is operative as a matter of law whenever the underlying facts meet the presumption's conditions, and the issue need not be raised prior to reconsideration. (See Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal.App.4th 418, 4 WCAB Rptr. 10,101.) [In this case the defendant obtained a comprehensive medical evaluation from a QME and the applicant did not obtain a report of a QME.] A.C. Transit District v. Workers' Compensation Appeals Board (Randolph Wesson) 5 WCAB Rptr. 10,307

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– Once an injured worker has complied with Labor Code §§4061/4062 by objecting to the treating physician's permanent and stationary report and obtains a QME report, the injured worker may obtain medical treatment from a qualified medical evaluator as the newly selected primary treating physician. If medical treatment or the selection of a new primary treating physician is disputed, the dispute must be resolved under title 8 section 9785(b), to validate the treatment and apply the presumption under Labor Code §4062.9 to the opinion of the alleged newly selected primary treating physician. Martin Gaytan v. Workers' Compensation Appeals Board, Los Angeles Unified School District. 5 WCAB Rptr. 10,187

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– To rebut the treating physician, in the plain language of section 4062.9, a medical opinion is required. The applicant's lay testimony on an issue requiring expert opinion, even if found credible, cannot rebut the presumption applicable to the treating physician. The opinion of a qualified medical examiner should not be accorded greater weight simply because the examination had taken place more recently. (See Minniear v. Mount San Antonio Community College District (1966) 61 Cal.Comp.Cases 1055 [en banc].) County of Los Angeles v. Workers' Compensation Appeals Board (Philip Butch) 5 WCAB Rptr. 10,182

TREATING PHYSICIAN PRESUMPTION OF CORECTNESS– Labor Code §4062.9– The treating physician presumption applies only if certain statutory conditions are satisfied. [In this case, the first treating physician found the employee's injury was not work-related. The injured worker did not resort to the Labor Code §4061 procedure to resolve the issue, but instead attempted to designate a new treating physician who concluded the injury was industrial.] Cambridge Integrated Services Group v. Workers' Compensation Appeals Board (Cyril Ebner) 5 WCAB Rptr. 10,171

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the treating physician presumption was rebutted by a QME whose report was in keeping with the applicant's testimony at the time of trial and the treating physician was unaware of the fact that the patient's subjective and objective findings had been further evaluated by an MRI study that was referred to and explained by the QME. City of Hope Medical Center v. Workers' Compensation Appeals Board (Brian Lew) 5 WCAB Rptr. 10,101

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– Once an injured worker has complied with Labor Code §§4061/4062 by objecting to the treating physician's permanent and stationary report and obtains a QME report, can the injured worker then designate the QME as a new primary treating physician and that physician is then entitled to the presumption of correctness? Martin Gaytan v. Workers' Compensation Appeals Board, Los Angeles Unified School District. 5 WCAB Rptr. 10,033

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the treating physician presumption was not rebutted by the defense QME report because (1) the treating physician's deposition was not taken to present alternative facts to him, (2) no functional evaluation was authorized although requested by the treating physician. Redwood Empire School Insurance Group v. Workers' Compensation Appeals Board (Laura Sachs) 5 WCAB Rptr. 10,021

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the treating physician presumption was rebutted by the defense QME, whose opinion was found to be more persuasive because he had thoroughly evaluated the objective testing (three MRIs and electrodiagnostic testing), reviewed all of the medical records and examined the applicant and found the objective evidence did not support continuing disability or need for ongoing medical treatment beyond exercise for muscle stretching and strengthening. [The defense QME physical examination revealed findings that were unusual given the significant cervical spine range of motion limitation in excess of what would have been expected even if there had been a cervical disc herniation. In addition, applicant's normal neurologic examination and applicant's grip strength testing was marred by a "markedly decreased effort" on the part of the applicant.] Rachel Daly v. Workers' Compensation Appeals Board, Stanford Hospital. 5 WCAB Rptr. 10,021

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the WCJ properly found the treating physician presumption was rebutted since the physician upon whom the WCJ relied was the only physician to obtain a complete and accurate history and the only physician to express an opinion on the issues of the applicant's degree of disability and apportionment. (See Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055.) Teichert & Son, Inc. v. Workers' Compensation Appeals Board (Ernest Guenza) 4 WCAB Rptr. 10,347

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the defense QME opinion did not sufficiently rebut the treating physician's opinion to overcome the presumption. [The defense QME ignored the positive finding of the MRI and did not take into consideration a critical diagnostic test and did not discuss a bulging, torn lumbar disc that showed encroachment but merely opined that the applicant had no ratable objective factors of disability and had no work restrictions.] American Golf, Inc. v. Workers' Compensation Appeals Board (Alvino Calderon) 4 WCAB Rptr. 10,347

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, surveillance videotape did not over come the presumption of correctness afforded the treating physician. [During over 45.5 hours of surveillance, the applicant was videotaped performing activities for less than 220 minutes and the activities performed were not proscribed by the primary treating physician.] City of Santa Ana v. Workers' Compensation Appeals Board (Estella Baker) 4 WCAB Rptr. 10,333

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case the applicant's compensable consequence allegation merely attempted to add additional disability to both his orthopedic and psychiatric injury that was found not to be credible in light of the entire record and all of the medical reports of the defense QMEs and applicant's own testimony. Hossein Karimian v. Workers' Compensation Appeals Board, Microdyne Corporation. 4 WCAB Rptr. 10,333

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In cases in which an additional comprehensive medical evaluation is obtained under Labor Code §4061 or §4062, the findings of the treating physician are presumed correct. This presumption is rebuttable and may be controverted by a preponderance of medical opinion indicating a different level of impairment. (See Minniear v. Mt. San Antonion CommunityCollege District (1997) 61 Cal.Comp.Cases 1450.) [It is not enough to just obtain a report from another doctor with a differing opinion from that of the treating physician to rebut the presumption. The §4061/4062 evaluator must prove, by a preponderance of evidence, that the treating physician's opinion is unacceptable and therefore cannot be followed.] T & D Tile Company v. Workers' Compensation Appeals Board (Manuel Teixeira) 4 WCAB Rptr. 10,285

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the WCJ properly found the presumption of correctness did not apply to the treating physician's opinion as his reports were seriously flawed and the report of the defense QME was more comprehensive and included a completer review of extensive medical records that showed prior knee and back injuries and surgical procedures supporting a finding of pre-existing disability supporting apportionment. Frank Pendle v. Workers' Compensation Appeals Board, Department of Corrections. 4 WCAB Rptr. 10,271

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– In this case, the evidence supported a finding of no injury to the right wrist. The treating physician discharged the applicant as permanent and stationary with a finding of no measurable grip loss. The treating physician was afforded the presumption of correctness. The subsequent opinion of the applicant's QME two years later involved grip loss caused by a neck injury and the Appeals Board properly found no permanent disability or need for further medical treatment for the right wrist. Christene Moore v. Workers' Compensation Appeals Board, Auto Parts Wholesale. 4 WCAB Rptr. 10,271

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– Must the issue of the application of the treating physician presumption of correctness be specifically raised as an issue at the mandatory Settlement Conference? Is the treating physician presumption of correctness activated by operation of law if either party disputes the findings of the treating physician and obtains a medical evaluation pursuant to labor Code §§ 4061 and 4062? Shelly Gee v. Workers' Compensation Appeals Board, Lucky Stores. 3 WCAB Rptr. 10,363

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– The treating physician presumption can be rebutted by the fact that the treating physician did not review surveillance films. (See Fleming v. Workers' Comp. Appeals Bd. (1998) 63 Cal.Comp.Cases 762.) [In this case, the treating physician limited applicant to semi-sedentary work, but did not review surveillance films taken after his evaluation. The defense QME reviewed the surveillance films and concluded that the applicant was far more capable of activity than he admitted to and that the surveillance films showed that the work restrictions imposed by the treating physician were not reasonable or valid.] John Fonte v. Workers' Compensation Appeals Board, City of Burbank. 3 WCAB Rptr. 10,342

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– Rebuttal of presumption by substantial evidence– The treating physician presumption was rebutted by substantial evidence in this case because the treating physician only partially reviewed surveillance films and did not discuss why the activity depicted in the films did not change his opinion. The defense QME reviewed the surveillance films and set forth in his report the activities he observed in the films and why they affected his changed opinion. Felipe Hernandez v. Workers' Compensation Appeals Board, Applied Magnetics Corp. 3 WCAB Rptr. 10,293

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– In order to overcome the presumption the following must be shown (1) there must be medical evidence indicating a different level of impairment, and lay testimony on its own is not sufficient to rebut the presumption, (2) the chronological sequence of evaluations is not determinative unless the treating physician's opinion is clearly no longer relevant, (3) any report which is to rebut the presumption must make reference to specific factos in the context of Board Rule 10606. Brian D. Lee, Jr. v. Workers' Compensation Appeals Board, United Airlines. 3 WCAB Rptr. 10,190

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– The treating physician's presumption must be raised as a separate issue, distinct from related issues such as the identity of the primary treating physician. The presumption cannot be raised for the first time in reconsideration proceedings following trial. (See Davis v. Interim Healthcare (2000) 2 WCAB Rptr, 10,328.) Jeffrey Max v. Workers' Compensation Appeals Board, Kelly Bush Public Relations. 4 WCAB Rptr. 10,189

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– A treating physician is entitled to rely on the reports of secondary treating physicians in preparing his final conclusions. Hunington Memorial Hospital, Inc., v. Workers' Compensation Appeals Board (Maureen Tillett) 4 WCAB Rptr. 10,186

TREATING PHYSICIAN PRESUMPTION– Labor Code § 4062.9– The opinion of the treating physician is presumed correct, and that presumption may only be controverted by a preponderance of medical opinion indicating a different level of impairment. (See, Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055.) Villa Rose, California Indemnity Insurance Company v. Workers' Compensation Appeals Board (Eileen Clark) 3 WCAB Rptr. 10,172

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– The treating physician presumption was properly rebutted by the defense QME, who reviewed the applicable treatment records, discussed the numerous prior industrial and non-industrial injuries, and discussed the present mechanism of the injury in question. In addition, the defense QME's findings as to subjective and objective factors are consistent with the over all level of permanent disability and was not inconsistent with the applicant's trial testimony. Andre Brodik v. Workers' Compensation Appeals Board, City of Walnut Creek. 3 WCAB Rptr. 10,172

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– It is inappropriate to apply the treating physician presumption regarding disputed body part. Etta Sargent v. Workers' Compensation Appeals Bd., GTE West. 4 WCAB Rptr. 10,156

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– What is required to overcome the presumption that the treating physician's opinion is correct include: (1) there must be medical evidence indicating a different level of impairment, and lay testimony on its own is not sufficient to rebut the presumption, (2) the chronological sequence of the evaluations is not determinative unless the treating physician's opinion is clearly no longer relevant, and (3) any report that is used to rebut the presumption must make reference to specific factors in the context of Board Rule 10606. (See Minniear v. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055 (en banc).) Ken Small Construction, Inv. v. Workers' Compensation Appeals Board, James Sparks. 4 WCAB Rtpr. 10,124

TREATING PHYSICIAN PRESUMPTION OF CORRECTION OF CORRECTNESS– Labor Code §4062.9– The treating physician presumption affects the burden of proof and applies to all medical issues covered by Labor Code §§4061 and 4062. The presumption is rebuttable but can not be rebutted (1) solely by applicant's testimony on an issue requiring expert opinion; (2) by mere conjecture that the treating physician's report is out of date when such allegation is in specific or supported by evidence; or (3) by a QME report on the basis that it is more thorough than the treating physician's report when such contention is not made in the contest of the elements described in Board Rule 10606. (See generally, Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055.) Jesus Magana v. Workers' Compensation Appeals Board, Environmental Service Products 3 WCAB Rptr. 10,109

TREATING PHYSICIAN PRESUMPTION OF CORRECTNESS– Labor Code §4062.9– The treating physician presumption of correctness may be raised at any time prior to the filing a Petition for Reconsideration so long as the opposing party cannot show prejudice. (See Davis v. Interim Healthcare (2000) 2 WCAB Rptr. 10,328 [En Banc].) Dana Charpentier v. Workers' Compensation Appeals Board, Wal-Mart, Inc. 3 WCAB Rptr. 10,108

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– Whenever the presumption's underlying conditions are established by the pleadings, stipulations, judicial notice, or evidence, the trier of fact must adopt the initial assumption that the treating physician's diagnosis is correct. Shelly Gee v. Workers' Compensation Appeals Board, Lucky Stores. 4 WCAB Rptr. 10,101

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the treating physician presumption was properly rebutted by evidence in other physicians' reports that the applicant's condition had substantially worsened requiring additional medications and physical therapy. Ryder Services Corporation v. Workers' Compensation Appeals Board ( Lewis Early) 3 WCAB Rptr. 10,091

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– In this case, the treating physician's diagnosis of thoracic outlet syndrome was rebutted by the other medical reports and the medical records which showed that there was an anatomic inconsistency which in the opinion of one or more other physicians to most likely reflect the existence of some emotional, psychological or emotional difficulties. Rosalva Reyes v. Workers' Compensation Appeals Board, Associates Vintage Group. 3 WCAB Rptr. 10,078

TREATING PHYSICIAN PRESUMPTION– Labor Code § 4062.9– The presumption that the treating physician's findings are correct is rebuttable by a preponderance of medical evidence idicating a different level of impairment. A contrary medical opinion is insuffient to rebut the presumption unless a preponderance of specific and substantial evidence establishes (1) there is a different level of impairment, (2) the treating physician's evaluation is no longer current, or (3) the contrary medical evaluation is more thorough than than the treating physician. (See Minniear v. Mount San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055.) Los Angeles Unified School District v. Workers' Compensation Appeals Board (Louann Rice) 4 WCAB 10,076

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– The treating physician presumption is not rebutted simply by providing a medical report which simply constitutes a disagreement as to the level of applicant's disability. (See Minniear v. Mt. San Antonio Community College District (1996) 61 Cal.Comp.Cases 1055 (en banc).) Lompoc Unified School District v. Workers' Compensation Appeals Board (Lindsay Jones) 4 WCAB Rptr. 10,075

TREATING PHYSICIAN PRESUMPTION– Labor Code §4062.9– The treating physician presumption of correctness was rebutted in this case since the treating physician did not state the reason for her sedentary work restriction given the absence of any objective pathology. Sally Ventura v. Workers' Compensation Appeals Board. 3 WCAB Rptr. 10,029