What the panel ordered
The December 20, 2021 Findings of Fact and Order is affirmed except as amended to order further development of the record with supplemental reports from Dr. Lee Lin and Dr. Cynthia Mothersole to address injury AOE/COE and temporary disability.
Petition for Reconsideration filed by defendants, granted in part to order further development of the record with supplemental reports from Dr. Lee Lin and Dr. Cynthia Mothersole, and otherwise affirming the WCJ's December 20, 2021 Findings of Fact and Order.
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.
The WCJ found applicant's credible testimony of increasing workload and substantial medical evidence of worsening eye condition during employment supported further development of the record to address injury AOE/COE and temporary disability.
From the decision · page 7As indicated above, this WCJ does understand that applicant bears the burden of proving injury AOE/COE but in light of the unrebutted and credible testimony of applicant's ever- increasing and unmanageable workload across county lines and substantial medical evidence documenting significant worsening of applicant's eye condition during applicant's employment with the employer herein, this WCJ exercised discretion to ensure substantial justice by ordering development of the record consistent with Labor Code § 3202, which states as follows:
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony of ever-increasing and unmanageable workload across multiple counties during employment.
Favours Applicant prevailed
Supported the WCJ's exercise of discretion to order further development of the record on injury AOE/COE and temporary disability.
From the decision · page 5The aforementioned non-disclosures can certainly be construed as self-serving but contrary to defendants' arguments in the Petition for Reconsideration, dated January 13, 2022, this WCJ does not find that defendants completely "impeached" applicant's credibility at Trial. This is because at Trial, applicant credibly testified that he started working for the employer in 2013 with one job and then in the beginning of 2014, he was overseeing three multi-family projects. When the superintendent for Los Angeles County and Orange County quit around mid- 2014, applicant was handling that area while the employer tried to fill that position. In 2015, projects in Ventura County and high desert were added to applicant's workload. In 2015 and 2016, one superintendent after another handling Riverside County and San Bernardino County quit and applicant was asked to cover those areas temporarily too. Throughout majority of 2017, applicant was handling multi-
Substantial medical evidence documenting significant worsening of applicant's eye condition during employment.
Favours Applicant prevailed
Supported the WCJ's exercise of discretion to order further development of the record on injury AOE/COE and temporary disability.
From the decision · page 6However, there is substantial medical evidence from Kaiser documenting the worsening of applicant's eye condition since January 2017 from additional medications being prescribed to dosage of medications being increased to try to control/treat the eye condition (Exhibits 11 and F). In fact, applicant's eye condition got so bad that Dr. Lee Lin, applicant's treating neurologist at Kaiser, took applicant off work on January 25, 2019 as he did not believe applicant could drive any more (Exhibit 11, Bate stamp Page 497).
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Lin took applicant off work on January 25, 2019 due to worsening eye condition and inability to drive; his causation opinion was speculative and not framed in reasonable medical probability.
The WCJ found Dr. Lin's causation opinion speculative and not substantial medical evidence because it was not framed in reasonable medical probability and lacked review of all prior records.
From the decision · page 6However, there is substantial medical evidence from Kaiser documenting the worsening of applicant's eye condition since January 2017 from additional medications being prescribed to dosage of medications being increased to try to control/treat the eye condition (Exhibits 11 and F). In fact, applicant's eye condition got so bad that Dr. Lee Lin, applicant's treating neurologist at Kaiser, took applicant off work on January 25, 2019 as he did not believe applicant could drive any more (Exhibit 11, Bate stamp Page 497).
From the decision · page 6From a medical standpoint, this WCJ did not find any of the medical evidence from Kaiser, U.S. Healthworks and/or Cynthia Morthersole, Ph.D. (Exhibits 1 to 11) substantial medical evidence to prove injury AOE/COE as explained in the Opinions on Decision.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code 3202 - The Workers' Compensation Act must be liberally construed in favor of the employee, and all reasonable doubts as to whether an injury arose out of employment are resolved in favor of the employee.
The WCJ exercised discretion to order further development of the record consistent with LC 3202 to ensure substantial justice.
From the decision · page 7As indicated above, this WCJ does understand that applicant bears the burden of proving injury AOE/COE but in light of the unrebutted and credible testimony of applicant's ever- increasing and unmanageable workload across county lines and substantial medical evidence documenting significant worsening of applicant's eye condition during applicant's employment with the employer herein, this WCJ exercised discretion to ensure substantial justice by ordering development of the record consistent with Labor Code § 3202, which states as follows:
McClune v. WCAB (1998) 62 Cal.App.4th 1117
McClune v. WCAB (1998) 62 Cal.App.4th 1117 - The WCJ and WCAB have authority to order additional evidence when the record lacks substantial evidence to support industrial causation, and failure to do so violates due process rights.
The WCJ relied on McClune to justify ordering further development of the record with supplemental reports from Dr. Lin and Dr. Mothersole.
From the decision · page 8his due process rights. The Court held that applicant therein was correct. (McClune v. WCAB, (1998), 62 Cal.App.4th 1117, 1120)
What proof carried it
The evidence the panel weighed, by kind.
Substantial medical evidence documenting significant worsening of applicant's eye condition during employment.
From the decision · page 6However, there is substantial medical evidence from Kaiser documenting the worsening of applicant's eye condition since January 2017 from additional medications being prescribed to dosage of medications being increased to try to control/treat the eye condition (Exhibits 11 and F). In fact, applicant's eye condition got so bad that Dr. Lee Lin, applicant's treating neurologist at Kaiser, took applicant off work on January 25, 2019 as he did not believe applicant could drive any more (Exhibit 11, Bate stamp Page 497).
Applicant's credible testimony of increasing and unmanageable workload across multiple counties during employment.
From the decision · page 5The aforementioned non-disclosures can certainly be construed as self-serving but contrary to defendants' arguments in the Petition for Reconsideration, dated January 13, 2022, this WCJ does not find that defendants completely "impeached" applicant's credibility at Trial. This is because at Trial, applicant credibly testified that he started working for the employer in 2013 with one job and then in the beginning of 2014, he was overseeing three multi-family projects. When the superintendent for Los Angeles County and Orange County quit around mid- 2014, applicant was handling that area while the employer tried to fill that position. In 2015, projects in Ventura County and high desert were added to applicant's workload. In 2015 and 2016, one superintendent after another handling Riverside County and San Bernardino County quit and applicant was asked to cover those areas temporarily too. Throughout majority of 2017, applicant was handling multi-
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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