ADJ12469521 — California WCAB decision

What the panel ordered

The WCAB affirmed the WCJ's Findings and Orders, denying the applicant's claim for injury arising out of and in the course of employment.

Applicant sought reconsideration of the Findings and Orders issued by the WCJ on July 29, 2022, which found no injury arising out of and in the course of employment; the WCAB granted reconsideration to further study the issues and issued this decision affirming the WCJ's findings.

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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/COEDefendant prevailedhands · shoulders · arms · low back · neck · psyche · left foot

The WCAB found substantial evidence supporting the WCJ's finding that the applicant did not sustain an injury AOE/COE based on the persuasive orthopedic QME report and the psychological QME report, as well as credibility determinations favoring the defense witnesses.

From the decision · page 4The orthopedic QME Dr. Fleming conducted a thorough evaluation of applicant and explained the rationale for his conclusions based on his objective examination and applicant's history as detailed in the medical records. Dr. Truong's conclusions are based on an inaccurate history regarding applicant's job duties while employed by defendant. Dr. Truong also did not review any medical records. We agree with the WCJ that the orthopedic QME Dr. Fleming's reporting is more persuasive than Dr. Truong's and constitutes substantial evidence that applicant did not sustain an injury AOE/COE to the orthopedic parts pled.

The facts that decided it

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

The orthopedic QME Dr. Fleming's report was more persuasive and based on objective findings and a thorough evaluation.

Favours Defendant prevailed

This report constituted substantial evidence that the applicant did not sustain an injury AOE/COE to the orthopedic parts pled.

From the decision · page 4The orthopedic QME Dr. Fleming conducted a thorough evaluation of applicant and explained the rationale for his conclusions based on his objective examination and applicant's history as detailed in the medical records. Dr. Truong's conclusions are based on an inaccurate history regarding applicant's job duties while employed by defendant. Dr. Truong also did not review any medical records. We agree with the WCJ that the orthopedic QME Dr. Fleming's reporting is more persuasive than Dr. Truong's and constitutes substantial evidence that applicant did not sustain an injury AOE/COE to the orthopedic parts pled.

The psychological QME Dr. Reznick concluded no psychiatric injury and applicant did not rebut this opinion.

Favours Defendant prevailed

This supported the finding that applicant did not sustain a psychiatric injury AOE/COE.

From the decision · page 4The psychological QME Dr. Reznick concluded that applicant did not suffer from any psychiatric condition and did not sustain a psychiatric injury. Applicant did not offer evidence rebutting Dr. Reznick's opinion regarding causation. Applicant did not meet her burden of proving

The WCJ's credibility determinations favored defense witnesses and found applicant not credible.

Favours Defendant prevailed

Credibility findings supported the denial of the claim for injury AOE/COE.

From the decision · page 5employer witnesses regarding applicant's job duties and the harassment allegations. She concluded that applicant was not a credible witness, but the defense witnesses testified credibly. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza, supra, 3 Cal.3d at pp. 318-319.) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)

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.

QMERelied upon · orthopedic

Concluded that the applicant's conditions were not industrially related and that the subjective complaints were not supported by objective findings; found the applicant's credibility questionable and the job duties did not support a repetitive trauma injury.

The WCAB found Dr. Fleming's report more persuasive than the treating physician's report and relied on his objective examination and history review.

From the decision · page 2Mark Fleming, D.O. evaluated applicant as the orthopedic qualified medical evaluator

PTPRejected

Provided diagnoses based on subjective complaints and an inaccurate history of job duties; did not review medical records.

The WCAB found Dr. Truong's conclusions less persuasive due to inaccurate history and lack of medical record review.

From the decision · page 4The orthopedic QME Dr. Fleming conducted a thorough evaluation of applicant and explained the rationale for his conclusions based on his objective examination and applicant's history as detailed in the medical records. Dr. Truong's conclusions are based on an inaccurate history regarding applicant's job duties while employed by defendant. Dr. Truong also did not review any medical records. We agree with the WCJ that the orthopedic QME Dr. Fleming's reporting is more persuasive than Dr. Truong's and constitutes substantial evidence that applicant did not sustain an injury AOE/COE to the orthopedic parts pled.

QMERelied upon · psychological

Did not find evidence to support any psychiatric diagnoses or psychiatric injury for the applicant.

The WCAB relied on Dr. Reznick's opinion as applicant did not rebut it with evidence.

From the decision · page 3Harrell Reznick, Ph.D. evaluated applicant as the psychological QME. Dr. Reznick did not find evidence to support any psychiatric diagnoses for applicant. (Defendant's Exhibit E, Report of Panel QME Harrell Reznick, Ph.D., November 12, 2020, p. 28.) He concluded that applicant did not sustain a psychological injury. (Id. at p. 31.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence.

The WCAB applied this standard to evaluate the evidence and found the applicant did not meet the burden.

From the decision · page 3The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.)2

Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Decisions of the Appeals Board must be supported by substantial evidence, which means evidence that is reasonable, credible, and of solid value.

The WCAB found the orthopedic QME's report constituted substantial evidence supporting the denial of the claim.

From the decision · page 3Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], italics and citations omitted.) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions."

ADJ12469521 · November 17, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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