ADJ13738554 — California WCAB decision

What the panel ordered

The WCAB granted the petition for reconsideration, rescinded the Findings and Order issued on March 12, 2024, and returned the matter to the trial level for further proceedings consistent with the decision.

Applicant sought reconsideration of the Findings and Order issued on March 12, 2024, which denied her claim for injury arising out of and in the course of employment; the WCAB granted reconsideration and rescinded the prior Findings and Order, returning the matter to the trial level for further proceedings.

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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/COERemandedleft shoulder · left knee

The WCAB found that the record was undeveloped on whether the applicant sustained injury arising out of and in the course of employment to the left shoulder and knee, as the QME report did not address whether the April 20, 2019 accident aggravated preexisting conditions; thus, the matter was remanded for further development.

From the decision · page 5Here, the record reveals that QME Dr. Rapoff reviewed diagnostic studies, including an MRI, that showed that applicant has "a bona fide left shoulder and left knee condition... [i.e.,] pre-existing, degenerative changes in the left shoulder and left knee which can cause pain." (Ex. B, Report of QME Dr. Rapoff, April 13, 2023, p. 58.) Notwithstanding this record, QME Dr. Rapoff's reporting offers no opinion as to whether applicant's April 20, 2019 accident lit up her preexisting left shoulder and left knee conditions and caused her to sustain industrial injury. Nor does the reporting offer an explanation or rationale for failing to address the issue. Notably, QME Dr. Rapoff's conclusion that applicant's descriptions of the extent of her claimed injury lack credibility does not negate the question of whether applicant in fact sustained injury in the first instance. We therefore conclude that the record should be further developed on the issue of whether applicant sustained injury to the left shoulder and knee.

The rules the panel named

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

Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372

A medical opinion is not substantial evidence when based on incorrect facts, history, examination or legal theory, or surmise, speculation, conjecture or guess.

The WCAB reviewed whether the QME report was substantial medical evidence given the absence of outpatient notes in the medical history.

From the decision · page 4DISCUSSION Applicant contends that the WCJ erroneously found that the report from QME Dr. Rapoff constitutes substantial medical evidence on the grounds that QME Dr. Rapoff did not review the outpatient notes from LAC/USC Primary Care showing that applicant sought medical treatment on May 3, 2019 for injuries related to her April 20, 2019 accident herein. We observe decisions of the WCAB must be supported by substantial evidence such as medical opinion. (Labor Code § 5903, 5952; Garza v. Workmen's Comp. App. Bd. (Garza) (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500].) A medical opinion is not substantial evidence when based on incorrect facts, history, examination or legal theory, or surmise, speculation, conjecture or guess. (Place v. Workers' Comp. Appeals Bd. (Place) (1970) 3 Cal.3d 372, 378 [90 Cal. Rptr. 424, 475 P.2d 656, 35 Cal.Comp.Cases 525].) A medical opinion should be based on reasonable medical probability and logical and persuasive reasoning, which is consistent with the record. (McAllister v. Workmen's Comp. Appeals Bd. (McAllister) (1968) 69 Cal.2d 408, 413, 416-417 [33 Cal.Comp.Cases 660]; Escobedo v.

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

For causation in workers' compensation, it is sufficient if the work is a contributing cause of the injury; acceleration or aggravation of a preexisting condition is compensable.

The WCAB noted the legal standard for causation requiring development of the record on whether the accident aggravated preexisting conditions.

From the decision · page 5Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291 [80 Cal.Comp.Cases 489].) "[T]he proximate cause requirement of Labor Code section 3600 has been interpreted as merely elaborating on the general requirement that the injury arise out of the employment. The danger from which the employee's injury results must be one to which he or she was exposed in the employment." (Id., at pp. 297 - 298 [citations omitted].) The acceleration, aggravation or `lighting up' of a preexisting condition "is an injury in the occupation causing the same." (Id., at p. 301, quoting Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 617; see also Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794 [33 Cal.Comp.Cases 358]; Reynolds Electrical & Engineering Co. v. Workers' Comp. Appeals Bd. (Buckner) (1966) 65 Cal.2d 438 [31 Cal.Comp.Cases 421].)

ADJ13738554 · May 30, 2024

What the panel ordered

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