ADJ8077330 — California WCAB decision

What the panel ordered

Findings and Order of November 14, 2018 rescinded; matter returned to WCJ for further proceedings and new decision

Petition for Reconsideration granted to further study factual and legal issues; matter returned to WCJ for further proceedings and new decision

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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/COERemandedback · jaw · teeth · respiratory system · psyche · sleep disorder

The lien claimant failed to provide substantial evidence to prove injury AOE/COE; medical opinions supporting injury were not substantial evidence due to inaccurate history and speculative causation; defendant did not waive the issue of injury AOE/COE; the matter was remanded for further proceedings due to insufficient evidence.

From the decision · page 1The Dental Trauma Center (lien claimant) seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 14, 2018, wherein the WCJ found in pertinent part that applicant did not sustain injury arising out of and occurring in the course of employment (AOE/COE) to her back, jaw, teeth, respiratory system, psyche, or in the form of sleep disorder; and the WCJ ordered that the lien be disallowed.

The rules the panel named

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

Labor Code section 5705; Labor Code sections 3202.5, 5705; Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588

Burden of proof rests on party holding affirmative of the issue; lien claimant must prove entitlement by preponderance of evidence

Lien claimant stands in the shoes of injured employee and must prove all elements of lien entitlement

From the decision · page 4Pursuant to Labor Code section 5705, "The burden of proof rests upon the party or lien claimant holding the affirmative of the issue." (Lab. Code, § 5705.) It is the applicant's burden to establish that industrial causation is reasonably probable. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297 [80 Cal.Comp.Cases 489]; Lantz v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298 [79 Cal.Comp.Cases 488].) When a lien claimant (rather than the injured worker) is litigating the issue of entitlement to payment for industrially- related medical treatment, the lien claimant stands in the shoes of the injured employee and the lien claimant must prove by a preponderance of the evidence all of the elements necessary to the establishment of its lien. (Lab. Code, § 3202.5, 5705; Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588, 1592 (Appeals Board en banc) Lien claimant did not cite, nor did we find, any statutory or case law that supports its argument that defendant waived the issue of injury AOE/COE.

Labor Code section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Award, order, or decision must be supported by substantial evidence; medical opinion not substantial if based on inaccurate history or speculation

Medical opinions must be based on accurate history and not on speculation to be substantial evidence

From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, [33 Cal.Comp.Cases 647]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

ADJ8077330 · March 9, 2021

What the panel ordered

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