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Kristina Gallo was employed as an Office Manager/Stock Clerk by Rooster T. Feathers Comedy Club on on 9/5/2014 when she suffered an injury to her back, trunk and lower extremities. A QME, Dr. Renee Ownbe, diagnosed her with right ankle fracture, right hip trochanteric bursitis that resulted in a 16% WPI to the ankle and 3% WPI for pain add on. The case was resolved by Compromise and Release agreement on 11/20/2107 for $60,000.

She then filed an application for Subsequent Injuries Benefits Trust Fund (SIBTF) benefits on 08/03/2018 alleging injury to the back, right side, right lower extremity with pre-existing disability to internal organs, bilateral upper and lower extremities, spine and psyche.

Dr. Christopher Chen, Dr. Joshua Kirz and Dr. Massoud Mahmoudi served as applicant’s SIBTF QMEs. SIBTF did not seek its own med-legal report.

Applicant testified during trial she had varicose vein starting in her early 30s, that she had symptoms prior to her 9/5/2014 subsequent injuries and had to change her work activities as a result. She also testified that during marathon training in 2005, she fell on her left side, injuring her left hip, left knee, and lower back and may have been seen by Dr. Rodney Wong. Applicant testified that she started limping on the left side shortly after the 2005 injury and continued every day but episodic.

However, the WCJ noted that “applicant’s testimony was not supported by any evidence whatsoever. Based on Dr. Kirz, he reviewed in excess of 1000 pages of records dating back to the 1990s. Yet, based on Dr. Chen, Dr. Kirz and Dr. Mahmood’s reports, there were no documents nor history of any lower extremities complaints, treatment, nor any documented history of limping.

Applicant relied on Dr. Chen’s opinion to support her SIBTF claim which stated that in part that “medical records” showed applicant had back problems going back to 2001 and that applicant “likely” had left L4 radiculopathy since 2005, which affected the opposite and corresponding lower extremity under LC §4751.

The WCJ however could not find any “records” that Dr. Chen stated to support this opinion. The WCJ went on to write “While there is no doubt that applicant had prior low back complaints as well as other symptoms, evidence failed to show prior or pre-existing labor disabaling condition to the opposite and corresponding left lower extremity. Dr. Chen miserably failed to point to a single evidence supporting “chronic left L4 radiculopathy” despite having reviewed extensive medical records. He did not support his reason for his opinion that applicant “likely” had left L4 radiculopathy since 2005 when the records he reviewed only related to low back pain.”

Applicant alleges that per Dr. Chen, varicose vein has latency period and genetic factors. Dr. Chen did not provided any opinion regarding latency of varicose vein. He did not specify the latency period nor any medical literature or evidence to support that applicant’s varicose vein was present and developed over many years. As for the genetic factor, again, Dr. Chen failed to provide any evidence. While medical record did confirm family history of heart disease in maternal grandparents and hyperlipidemia in applicant’s mother, where applicant’s mild hypertriglyceridemia was most likely genetic, records were silent as to any family history of varicose vein. The undersigned can only logically conclude Dr. Chen’s opinion is speculative or relying on facts not supported by any evidence.

On July 16, 2021 the WCJ issued a Findings and Order which found that “applicant has not established through substantial medical evidence that she had permanent partial disability to her left lower extremity, specifically varicose vein, as of the date of her subsequent industrial injury to the opposite and corresponding member on [September 5, 2014].”

The Findings and Order was affirmed by the WCAB in the case of Gallo v Subsequent Injuries Benefits Trust Fund -ADJ10049929 (March 2024).

“We agree with the WCJ that the opinion of Christopher Chen, M.D., is not substantial medical evidence. To be considered substantial evidence, a medical opinion ‘must be predicated on reasonable medical probability.’ (E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687];McAllister v. Workmen’s Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416–17, 419 [33 Cal.Comp.Cases 660].) A physician’s report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).)”

On reconsideration, applicant argued that she had “newly discovered evidence” to support her claim. However, the WCAB panel noted that “we note that applicant has failed to comply with the requirements of WCAB Rule 10974” which requires that the petition must contain an offer of proof which includes “a full and accurate statement of the reasons why the testimony or exhibits could not reasonably have been discovered or produced before submission of the case.”

A petition for reconsideration sought upon these grounds may be denied if it fails to meet the requirements of this rule, or if it is based upon cumulative evidence.”