ADJ13012543 · February 22, 2024

The WCJ's denial of compensability was based on a finding that the medical opinion was not supported by substantial evidence due to an inaccurate history; the WCAB found the medical record insufficient and remanded for further development.

From the decision · page 1Applicant seeks reconsideration of the New and Amended Joint Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 30, 2023, wherein the WCJ found that applicant did not sustain a psychiatric injury arising out of and occurring in the course of employment (AOE/COE) while employed by defendant during the period from August 26, 2015, through August 26, 2016 (ADJ13404851); and that applicant did not sustain a psychiatric injury AOE/COE while employed by defendant during the period from March 17, 2000, through February 21, 2020 (ADJ13012543); the WCJ ordered that applicant take nothing by way of her injury claims.

Dr. Marusak's medical opinion was based on a history inconsistent with trial witness testimony.

Favours Defendant prevailed

This undermined the opinion's status as substantial evidence, leading to denial of compensability and remand for further development.

From the decision · page 4Based on our review of the record, it is clear that the history Dr. Marusak was given was not consistent with the testimony of the three witnesses taken over the course of the six trial dates. As noted, one of the requirements for a doctor's report, and the opinions stated in the report, to constitute substantial evidence is that it be based on an accurate history. (Escobedo v. Marshalls, supra.) As noted, in this matter, Dr. Marusak was given a history that was not consistent with the witnesses' trial testimony. Thus, her opinions do not appear to be based on an accurate history, and in turn her opinions do not constitute substantial evidence. Also as noted, a trial record, upon which a decision as to whether an applicant sustained a cumulative injury is based, must include an expert medical opinion that constitutes substantial evidence.

Diagnosed Generalized Anxiety Disorder; causation 80% to perceived/actual supervisory harassment including racial, religious discrimination and ageism; 20% to personnel actions (write-ups, threat of termination) deferred to Trier-of-Fact; history not consistent with trial testimony, so opinions not substantial evidence.

The WCJ found the medical opinion was not based on an accurate history and thus not substantial evidence, leading to remand for further development.

From the decision · page 2On September 1, 2020, psychiatric qualified medical examiner (QME)

Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241

Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241

Referenced by Dr. Marusak in causation analysis of personnel actions.

From the decision · page 2In considering causation from an industrial standpoint: causation is 80% to the perceived versus actual stress and harassment in the workplace; and 20% due to personnel actions which were not a substantial cause (40%) of her psychiatric injury. (i.e. the three counseling letters, which were all similarly and equally distressing to her, as well as the three yearly evaluations that states she needed improvement.) Thus, in regard to the Rolda analysis an equal percentage would be given to each of the six personnel actions at work (3 counseling letters and the three end of year evaluations). 20% causal was to the non-substantial personnel actions, the ultimate nature of which resides in the purview of the Trier-of-Fact in this case. (App. Exh. 2, Susan L. Marusak, M.D., March 8, 2021, p. 28.)1

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Medical opinion must be based on pertinent facts, adequate examination, and accurate history to constitute substantial evidence.

The WCJ found the medical opinion was not based on an accurate history and thus not substantial evidence.

From the decision · page 4Based on our review of the record, it is clear that the history Dr. Marusak was given was not consistent with the testimony of the three witnesses taken over the course of the six trial dates. As noted, one of the requirements for a doctor's report, and the opinions stated in the report, to constitute substantial evidence is that it be based on an accurate history. (Escobedo v. Marshalls, supra.) As noted, in this matter, Dr. Marusak was given a history that was not consistent with the witnesses' trial testimony. Thus, her opinions do not appear to be based on an accurate history, and in turn her opinions do not constitute substantial evidence. Also as noted, a trial record, upon which a decision as to whether an applicant sustained a cumulative injury is based, must include an expert medical opinion that constitutes substantial evidence.

Lab. Code, §§5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to develop the record when the medical record is not substantial evidence or insufficient to determine an issue.

The WCAB remanded for further proceedings to develop substantial evidence.

From the decision · page 4The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or where there is insufficient evidence to determine an issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Normally, when the medical record requires further development, the record should first be supplemented by physicians who have already reported in the case. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) It appears that under the circumstances of this matter, Dr. Marusak must be provided a copy of the WCJ's summary of the testimony of each trial witness, and that she be asked to submit a supplemental report addressing the issue of psychiatric injury AOE/COE. We, therefore, recommend that the WCJ schedule a status conference in order to facilitate the parties' further development the record, and to assure that it contains substantial evidence upon which the issues submitted for decision may be decided.

Inconsistent history given to Dr. Marusak compared to trial witness testimony

From the decision · page 4Based on our review of the record, it is clear that the history Dr. Marusak was given was not consistent with the testimony of the three witnesses taken over the course of the six trial dates. As noted, one of the requirements for a doctor's report, and the opinions stated in the report, to constitute substantial evidence is that it be based on an accurate history. (Escobedo v. Marshalls, supra.) As noted, in this matter, Dr. Marusak was given a history that was not consistent with the witnesses' trial testimony. Thus, her opinions do not appear to be based on an accurate history, and in turn her opinions do not constitute substantial evidence. Also as noted, a trial record, upon which a decision as to whether an applicant sustained a cumulative injury is based, must include an expert medical opinion that constitutes substantial evidence.