ADJ11348013 · August 22, 2024

The WCJ found applicant sustained industrial injury to the right shoulder on July 25, 2017, based on credible testimony and substantial medical evidence from QME Dr. McGahan, despite defendant's challenge to evidence admission and applicant credibility.

From the decision · page 6Based upon Applicant's credible testimony, the treatment records, and the findings by QME Dr. McGahan, it is found that Applicant sustained injury to his right shoulder arising out of and occurring in the course of employment on July 25, 2017.

Applicant sustained injury to right shoulder on July 25, 2017, arising out of and in the course of employment

Favours Applicant prevailed

Based on applicant's credible testimony, treatment records, and QME Dr. McGahan's findings, the injury was found industrial

From the decision · page 6Based upon Applicant's credible testimony, the treatment records, and the findings by QME Dr. McGahan, it is found that Applicant sustained injury to his right shoulder arising out of and occurring in the course of employment on July 25, 2017.

Found industrial injury causing symptomatic outgrowth from degenerative joint disease; reports not relied upon for final injury finding due to retirement and incomplete reporting.

Reports not relied upon for final injury finding; defendant's petition for reconsideration challenged admission but error was harmless.

From the decision · page 9It appears that applicant erred in omitting the reports of Dr. Hanley from the pre-trial conference statement. Defendant's position is that the reports should not have been admitted into evidence based on a strict reading of section 5502. However, we find this error to be harmless as neither the WCJ nor the Appeals Board relied upon the reporting of Dr. Hanley to find applicant's injury industrial. Moreover, the WCJ always retains discretion to determine if evidence should be admitted into the record as a matter of due process and so that their decision is based on substantial evidence. As defendant admits in its petition, Dr. Hanley retired and his reporting was not complete. Dr. Hanley's reporting cannot constitute substantial medical evidence upon which an award may issue. Thus, defendant was not harmed by the admission of Dr. Hanley's reports. Furthermore, Dr. McGahan became the QME precisely because Dr. Hanley retired, and the parties stipulated the Dr. McGahan was the QME. Any claim by defendant that it would have obtained a "rebuttal witness" is without merit.

Found industrial injury to right shoulder on July 25, 2017, as an aggravation of preexisting disease, supported by history, exam, imaging, and medical records; recommended treatment.

Opinions constitute substantial medical evidence supporting industrial injury finding.

From the decision · page 6Applicant had a QME evaluation by Dr. Patrick McGahan on April 25, 2020. Dr. McGahan found an industrial injury to the right shoulder on July 25, 2017 based on the history, physical exam, imaging, and medical records. Dr. McGahan found an aggravation of a preexisting disease and recommended treatment through the workers' compensation system. (Joint Exhibit DD)

Labor Code section 3202.5

Preponderance of the evidence standard for proving injury arising out of and in the course of employment (AOE/COE)

Applicant must prove injury AOE/COE by preponderance of evidence; WCJ found credible testimony and substantial medical evidence sufficient.

From the decision · page 7v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302; § 5705.) Applicant must prove by a preponderance of the evidence that an injury occurred AOE/COE. (Lab. Code2,

Labor Code section 5708

Appeals Board's authority to admit evidence and accomplish substantial justice

WCJ properly admitted evidence including Dr. Hanley's reports despite procedural objections; error found harmless as Dr. McGahan's opinions were relied upon.

From the decision · page 9We would further note that section 5708 provides that the Appeals Board is bound to accomplish substantial justice in all cases and is generally not bound by the common law or statutory rules of evidence. The WCJ "may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division," and based on our review, the WCJ properly admitted and considered Dr. Hanley's reporting. (Lab. Code, § 5708.)

Applicant's credible testimony

From the decision · page 6Based upon Applicant's credible testimony, the treatment records, and the findings by QME Dr. McGahan, it is found that Applicant sustained injury to his right shoulder arising out of and occurring in the course of employment on July 25, 2017.