ADJ11439752 · August 15, 2022

The WCJ credited the primary treating physician's opinion over the QME's lower impairment rating, finding the treating physician's assessment more credible and supported by the evidence, including the absence of pain during grip strength testing.

From the decision · page 3Defendant's petition alleges that the degree of permanent partial disability assigned by the WCJ to applicant's loss of grip strength is not appropriate in light of the evidence. In reaching his opinion regarding permanent partial disability, the WCJ has relied upon the conclusions of the qualified medical evaluator, Dr. Wayne Inman, and applicant's primary treating physician, Glenn Nussbaum DC.

The treating physician, Dr. Glenn Nussbaum, found an 18% whole person impairment due to grip strength deficit with no pain during testing, supporting the use of grip strength as a measure of impairment.

Favours Defendant prevailed

The WCJ found Dr. Nussbaum's opinion most credible and substantial, leading to the denial of reconsideration.

From the decision · page 4Both physicians found that applicant has permanent partial disability in the form of grip loss that is 100% caused by the industrial injury. However, the physicians differed in their opinion as to the degree of whole person impairment resulting therefrom. The primary treating physician, Dr. Nussbaum concluded the following:

Applicant's testimony about pain on gripping was conflicting and appeared influenced by leading questions, reducing its credibility.

Favours Defendant prevailed

The WCJ gave less weight to applicant's testimony and relied on the treating physician's opinion instead.

From the decision · page 5At trial there was confusing testimony from applicant in regards to whether he experiences pain upon grasping and gripping. Applicant was led to say that he experiences pain on gripping and grasping, but then upon further questioning stated that he does not have pain upon gripping and grasping. Applicant appeared confused about how to answer defendant's leading questions. Having had the opportunity to carefully observe applicant's demeanor at trial, the WCJ does not give great weight to his responses to the leading questions asked by defendant at trial. Applicant's confused and conflicting responses appeared to be the product of skillful cross-examination, rather than a statement of the actual facts. The better evidence consists of the opinion of the primary treating physician, Dr. Glenn Nussbaum:

Concluded applicant has 18% whole person impairment due to grip strength deficit in right wrist, with no pain during grip strength testing, supporting use of grip strength as impairment measure.

The WCJ found Dr. Nussbaum's opinion most credible and substantial regarding the degree of grip loss impairment.

From the decision · page 4Both physicians found that applicant has permanent partial disability in the form of grip loss that is 100% caused by the industrial injury. However, the physicians differed in their opinion as to the degree of whole person impairment resulting therefrom. The primary treating physician, Dr. Nussbaum concluded the following:

Found grip weakness causing 6% whole person impairment, 100% industrial causation, no significant nonindustrial factors.

The WCJ gave less weight to Dr. Inman's lower impairment rating compared to the treating physician's higher rating.

From the decision · page 4The QME, Dr. Wayne Inman came to the following conclusion:

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379

The relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions.

The WCJ relied on the treating physician's opinion as substantial evidence over the QME's differing opinion.

From the decision · page 1We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319

Credibility determinations of the WCJ are given great weight because the WCJ observes witness demeanor directly.

The WCJ's credibility determination of applicant's testimony was given great weight and not rejected.

From the decision · page 1We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)

Applicant's conflicting and confused testimony about pain on gripping and grasping, which the WCJ found was influenced by leading questions and not credible.

From the decision · page 5At trial there was confusing testimony from applicant in regards to whether he experiences pain upon grasping and gripping. Applicant was led to say that he experiences pain on gripping and grasping, but then upon further questioning stated that he does not have pain upon gripping and grasping. Applicant appeared confused about how to answer defendant's leading questions. Having had the opportunity to carefully observe applicant's demeanor at trial, the WCJ does not give great weight to his responses to the leading questions asked by defendant at trial. Applicant's confused and conflicting responses appeared to be the product of skillful cross-examination, rather than a statement of the actual facts. The better evidence consists of the opinion of the primary treating physician, Dr. Glenn Nussbaum: