ADJ11710208 · April 7, 2022

The Board gave great weight to the WCJ's credibility determinations, which found the applicant's testimony not credible due to multiple inconsistencies and lack of physical findings supporting the injury, leading to denial of injury AOE/COE.

From the decision · page 3Petitioner contends that the Court erred in determining that Applicant was not a credible witness and thus the finding that she did not sustain injury AOE/COE.

Dr. Figueroa noted histrionic behavior and lack of physical findings inconsistent with history.

Favours Defendant prevailed

This medical observation raised significant credibility concerns about the applicant's testimony.

From the decision · page 6were inconsistent with the history only pertained to the finding of left sided hypoesthesia, and not to the injury to the neck back and knee. The Court disagrees with Petitioner's assessment in that regard. Dr. Figueroa examined Petitioner relative to all of her physical complaints. The mention of histrionic behavior and lack of physical findings inconsistent with her history was listed under the exam heading as a separate entry, similar to a bullet point, than the mention of the Hypoesthesia, which appears to have been listed separately on a different line. Any doubt in that regard should have been resolved by deposing Dr. Figueroa, but no such deposition occurred in this case. In any event, the Court's focus in citing this report was not causation itself, but credibility.

Photographs of the work site showed the claimed fall backwards was implausible as the applicant would have hit a cart behind her.

Favours Defendant prevailed

This physical evidence further undermined the plausibility of the applicant's injury claim.

From the decision · page 7However, no matter what version of Applicant's story is believed, the pictures of the site where the injury allegedly occurred places further doubt as the veracity of her claim. Clearly there is no way Petitioner fell backward. Had that occurred, she likely would have hit her head on the cart behind her. Thus, the numerous inconsistencies regarding the mechanism of injury, the lack of witnesses, the red flag raised by Dr. Figuroa, and the questionable plausibility

Applicant gave multiple inconsistent statements about the mechanism of injury and timing of injury report.

Favours Defendant prevailed

These inconsistencies undermined the applicant's credibility, a key factor in injury determination.

From the decision · page 4On the first date of trial which occurred on 3/23/21, Jennifer Darling testified that she came to the conclusion that Petitioner's claim was fraudulent because of four different statements provided to various individuals regarding the mechanism of injury including the initial report that she bumped her knee on a metal shelf, a statement to Mike Taylor that she bumped her knee on the stepstool, the history to Dr. Figueroa that she fell off a stepladder and fell on the concrete floor, and another statement (likely to Dr. Rosenberg) that she fell on her knee and fell backwards on the concrete floor (Summary of Evidence 3/23/21, page 6).

Noted histrionic behavior and lack of physical findings inconsistent with history, raising credibility concerns.

The report was used to assess credibility, not causation, and the histrionic behavior noted was a significant factor in finding the applicant not credible.

From the decision · page 6were inconsistent with the history only pertained to the finding of left sided hypoesthesia, and not to the injury to the neck back and knee. The Court disagrees with Petitioner's assessment in that regard. Dr. Figueroa examined Petitioner relative to all of her physical complaints. The mention of histrionic behavior and lack of physical findings inconsistent with her history was listed under the exam heading as a separate entry, similar to a bullet point, than the mention of the Hypoesthesia, which appears to have been listed separately on a different line. Any doubt in that regard should have been resolved by deposing Dr. Figueroa, but no such deposition occurred in this case. In any event, the Court's focus in citing this report was not causation itself, but credibility.

Found the injury industrially related based on history of falling while ascending a two step stool and landing flat on back.

The history given to Dr. Rosenberg was inconsistent with applicant's trial testimony, which was a factor in assessing credibility.

From the decision · page 6Petitioner also argues that the Court erred in considering that Dr. Rosenberg obtained a history from Applicant that she "landed flat on her back" and that she fell as she was "ascending the two step stool" as factors in determining Petitioner's credibility. Petitioner's argument is that it is not clear as to the circumstances surrounding the interpreters used in the case. But there was no argument or testimony provided at trial tending to demonstrate any problem in that regard. To the contrary, Applicant relies on the reporting of Dr. Rosenberg to prove injury. Thus, if Petitioner's argument is to be accepted, it creates yet another ground on which to support a finding of no injury, since Dr. Rosenberg's opinion clearly could not be relied upon if the interpreter was not qualified. However, if there is was an issue with the communication between Applicant and Dr. Rosenberg, those facts should have been brought out in deposition testimony, or at the very least through Petitioner's testimony. But again, just as with the reporting of Dr. Figueroa, no deposition was taken to clarify any alleged problems with the interpreting. But assuming no communication/interpretation issue, the history regarding the mechanism of injury to Dr. Rosenberg is significantly at odds with Petitioner's trial testimony.

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

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

The Board adopted the WCJ's credibility findings as there was no substantial evidence to reject them.

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (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.)

Multiple inconsistent statements by applicant regarding mechanism of injury and timing of injury report.

From the decision · page 4On the first date of trial which occurred on 3/23/21, Jennifer Darling testified that she came to the conclusion that Petitioner's claim was fraudulent because of four different statements provided to various individuals regarding the mechanism of injury including the initial report that she bumped her knee on a metal shelf, a statement to Mike Taylor that she bumped her knee on the stepstool, the history to Dr. Figueroa that she fell off a stepladder and fell on the concrete floor, and another statement (likely to Dr. Rosenberg) that she fell on her knee and fell backwards on the concrete floor (Summary of Evidence 3/23/21, page 6).

Photographs of the work site showing implausibility of the claimed fall backwards injury.

From the decision · page 7However, no matter what version of Applicant's story is believed, the pictures of the site where the injury allegedly occurred places further doubt as the veracity of her claim. Clearly there is no way Petitioner fell backward. Had that occurred, she likely would have hit her head on the cart behind her. Thus, the numerous inconsistencies regarding the mechanism of injury, the lack of witnesses, the red flag raised by Dr. Figuroa, and the questionable plausibility