Gary McKinney was involved in an auto accident while driving a delivery truck for UPS, which resulted in the death of a motorcyclist.  McKinney was terminated following an investigation involving a union representative, a company employee, and an arbitrator. As a result of the investigation, it was determined that applicant’s conduct was reckless, resulting in a serious accident.

Nonetheless, McKinney pursued his workers’ compensation benefits for both orthopedic and psychiatric alleged injury. For his orthopedic condition, applicant was evaluated by an orthopedic QME Dr. Senador on multiple occasions, resulting in six reports issued by Dr. Senador between July 14, 2010 through March 26, 2012. Dr. Senador’s opinion that applicant did not sustain injury arising out of and in the course of employment to his back, neck, and sleep was consistent throughout his opinions. For the psychiatric injury, applicant was evaluated by Panel Qualified Medical Examiner (PQME) Dr. Charles Furst, Ph.D. Dr. Furst stated that 50% of applicant’s psychological disorder was caused by the emotional trauma of learning that a motorcyclist involved in the accident was killed, as well as the emotional trauma of being criminally charged with manslaughter in this death. The remaining 40% of the causation of applicant’s psychological disorder was due to applicant being terminated from his job due to his conduct involved in the auto accident, which Dr. Furst noted may be the result of a nondiscriminatory, good faith personnel action.

The WCJ found that applicant, while employed as a driver/dockworker for United Parcel Service on August 8, 2008, sustained injury arising out of and in the course of employment to his psyche, but did not sustain injury arising out of and in the course of employment to his back. neck and sleep. In finding that applicant’s psychiatric injury was caused by his employment, the WCJ rejected the portion of the opinion of Dr. Charles Furst which found that 40% of applicant’s psychiatric injury was caused by applicant’s termination following the injury, which Dr. Furst deemed to be the result of a lawful, nondiscriminatory, good faith personnel action pursuant to Labor Code section 3208.3(h). In support of the determination that applicant did not sustain injury to his back, neck and sleep, the WCJ relied upon the opinion of the orthopedic QME Dr. Jose Senador.

Both parties filed a petition for reconsideration. Defendant objected to the finding of psychiatric injury, and applicant objected to the take nothing in the physical injury case.

The WCAB panel rescinded the WCJ’s Findings and Award and Order, and issued its own decision to find that applicant did not sustain an injury arising out of and in the course of employment to his psyche. In doing so, it found that Dr. Furst adequately discussed the issue of causation of applicant’s psychiatric disorder, and that his opinion was based upon substantial medical evidence when reviewing his opinion as a whole. It did not disturb the portion of the WCJ’s decision which found that applicant did not sustain an industrial injury to his back, neck, and sleep. Thus, applicant took nothing in the case of Kinney v. United Parcel Service.

The novel issue in was in an argument raised by the applicant for the first time on reconsideration, He argued that since Dr. Senador’s QME license was suspended during this case, his reports were inadmissible. The WCAB rejected this argument and held that the reports of Dr. Senador were indeed admissible.

The WCAB panel noted that there is no authority, and certainly none cited by applicant, in the Labor Code or in the regulations which indicates that reports of a QME are inadmissible during a suspension or probation of the QME’s license by the Medical Unit.  Labor Code section 139.2(m) specifies that a report of a QME is inadmissible if the QME has been suspended or placed on probation by the “relevant licensing board,” which is the California Medical Board.  Applicant did not allege that Dr. Senador was suspended or placed on probation by the relevant licensing board. Furthermore, an online search of the records of the California Medical Board reveals that its only disciplinary action involving Dr. Senador at any time was a public reprimand on February 4, 2010, and that his license has not been suspended or revoked.