ADJ11636909 — California WCAB decision

What the panel ordered

March 19, 2021 Findings of Fact and Order rescinded and substituted with new Findings of Fact affirming injury AOE/COE to left foot, left ankle, and right knee; intoxication defense not established

Petition for Reconsideration granted to issue proper Findings of Fact and amend the WCJ's decision

Read the official decision →

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedleft foot · left ankle · right knee

The record supports a finding of industrial causation for the left foot, left ankle, and right knee based on the opinion of PQME Dr. Marshall Lewis and the WCJ's credibility determinations.

From the decision · page 1We do not adopt or incorporate the WCJ's recommendation that we deny reconsideration. Rather, we find it necessary to grant reconsideration for the sole purpose of issuing proper Findings of Fact. Pursuant to Labor Code1 section 5313, "the workers' compensation judge shall, within 30 days after the case is submitted, make and file findings upon all facts involved in the controversy..." (Lab. Code, § 5313, emphasis added.) Those findings must subsequently support any an order, decision, or award that is issued. (Lab. Code, § 5903(e).) Therefore, we will rescind the WCJ's March 19, 2021 Order and substitute it with Findings of Fact that also incorporate the stipulations the parties made at trial. While the WCJ did not make a finding of injury to any of the alleged body parts, we are persuaded that the record supports a finding of industrial causation for the left foot, left ankle, and right knee based on the opinion of orthopedic surgeon panel qualified

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

No toxicology report was submitted by defendant to prove intoxication at time of injury

Favours Applicant prevailed

Without toxicology evidence, defendant failed to meet burden of proof for intoxication defense

From the decision · page 3It was defendant's burden to prove that applicant was intoxicated and that the intoxication was a proximate and substantial cause of the injury. We note, as did the WCJ in the Report, that defendant did not submit any toxicology report into evidence and that the opinion of Dr. Lewis, an orthopedic surgeon, on any toxicology report that he may have reviewed was not substantial medical evidence. During his deposition, Dr. Lewis testified that he had no degree with respect to toxicology (Dr. Lewis' 1/22/20 depo, at p. 6:6, Joint Exhibit 6); that he was not certified in toxicology (id., at 8:15-16); that he had not taken any classes concerning marijuana intoxication (id. at p. 16:1-4); and that he did not review any statements of witnesses to the injury or to applicant's behavior prior to the injury (id., at p. 9:2-8). Moreover, Dr. Lewis applied the wrong legal standard in his analysis focusing much of his discussion on irrelevant factors.

PQME Dr. Lewis lacked toxicology expertise and applied incorrect legal standard in intoxication analysis

Favours Applicant prevailed

Dr. Lewis' opinion on intoxication was not substantial medical evidence and was rejected

From the decision · page 3It was defendant's burden to prove that applicant was intoxicated and that the intoxication was a proximate and substantial cause of the injury. We note, as did the WCJ in the Report, that defendant did not submit any toxicology report into evidence and that the opinion of Dr. Lewis, an orthopedic surgeon, on any toxicology report that he may have reviewed was not substantial medical evidence. During his deposition, Dr. Lewis testified that he had no degree with respect to toxicology (Dr. Lewis' 1/22/20 depo, at p. 6:6, Joint Exhibit 6); that he was not certified in toxicology (id., at 8:15-16); that he had not taken any classes concerning marijuana intoxication (id. at p. 16:1-4); and that he did not review any statements of witnesses to the injury or to applicant's behavior prior to the injury (id., at p. 9:2-8). Moreover, Dr. Lewis applied the wrong legal standard in his analysis focusing much of his discussion on irrelevant factors.

Applicant's credible testimony that he was not intoxicated on the date of injury and that co-workers and foreman would testify to the same

Favours Applicant prevailed

Credibility determinations favored applicant and supported rejection of intoxication defense

From the decision · page 4The WCJ relied on applicant's credible testimony that he had smoked marijuana approximately four days before the injury and was not intoxicated on the day of his injury. (Minutes of Hearing and Summary of Evidence (MOH/SOE) DATE, at p. 4:10-11.) We have given the WCJ's credibility determinations 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 determinations. (Id.)

ADJ11636909 · May 26, 2021

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page