ADJ11113127 · February 7, 2023

Applicant failed to prove by a preponderance of the evidence that the injury occurred arising out of and in the course of employment; medical evidence showed no cumulative injury through last date of employment; applicant's testimony lacked credibility and was inconsistent with medical records; QME changed opinion to no industrial injury after reviewing prior claims.

From the decision · page 3Applicant, who is represented, filed, in pro per, a timely and verified Petition for Reconsideration from the Findings of Fact and Order, issued on November 14, 2022, which found that applicant did not sustain an industrial injury to his right leg and right foot as part of a cumulative trauma through the last date of his employment in 2017. I further issued an order dismissing the case with prejudice.

Medical evidence showed no cumulative injury through last date of employment.

Favours Defendant prevailed

Supported denial of industrial injury claim.

From the decision · page 6The medical evidence in this case is clear that no cumulative injury was found through the last date of employment. Dr. Ansel's discussion of causation of permanent disability is referring the reader back to a prior industrial injury of 2010. Applicant's arguments to the contrary appear to be inadvertent misstatements of the record.

Applicant's testimony was inconsistent and lacked credibility, with non-physiologic and exaggerated responses noted by QME.

Favours Defendant prevailed

Credibility issues undermined applicant's claim of industrial injury.

From the decision · page 6Applicant next argues that I exhibited bias in noting that he was nervous. Such a discussion was not bias toward applicant. I understand that every person who testifies can experience nervousness. When I see that, I attempt to assist them in alleviating any nervousness, which also assists the court reporting in taking down an accurate record. the applicant appeared at trial to be a perfectly nice and polite person. The fact that he also appeared nervous did not factor into my judgement of his credibility. The primary credibility issue in this case is the substance of applicant's testimony and the changing story regarding the injury. Applicant's testimony was not corroborated by the contemporaneous medical record. The next issue regarding credibility were the opinions by Dr. Ansel regarding non-physiologic and exaggerated responses during the physical exam. My opinions as to the credibility of his testimony were based off the inconsistencies in the record and applicant's reported presentation at examination.

Opined that applicant's alleged injury was not caused, exacerbated or aggravated by employment.

Based on medical evaluation and history taken on November 8, 2017, noting no specific mechanism of injury and no industrial causation.

From the decision · page 3On November 8, 2017, applicant was evaluated by Douglas Merrill, M.D., who noted the following history: "[W]hile at work on 11/07/2017 he began experiencing significant pain in his RIGHT foot and had also noticed some discoloration and swelling in his RIGHT forefoot." (Joint Exhibit 112, Report of Douglas Merrill, M.D., November 8, 2017, p. 1.) In the first report of injury, Dr. Merrill noted: "Per patient: I was simply going about my job duties and the pain gradually got worse to my right foot. I then removed my sock and my right foot was swollen and bruised." (Joint Exhibit 111, Report of Douglas Merrill, M.D., November 8, 2017, p. 1.) Applicant reported no specific mechanism of injury to Dr. Merrill. (Ibid.)

Initially opined industrial aggravation occurred but later changed opinion to no industrial injury after reviewing additional records and prior claims; noted applicant's credibility issues and non-physiologic responses.

Based on extensive review of medical records and applicant's presentation at examination.

From the decision · page 4Applicant was evaluated by QME Robert Ansel, M.D. who issued eight reports in evidence and was deposed twice. (Joint Exhibits 101 through 110.) Dr. Ansel took a history that applicant suffered a marked increase of pain in November 2017 absent any specific injury. (Joint Exhibit 101, p. 2.) Dr. Ansel initially opined that industrial aggravation occurred. (See generally, Joint Exhibits 101 and 102.) However, upon review of additional records, including applicant's prior claims of injury to the foot and the medical report of the QMEs in those prior claims, Dr. Ansel changed his opinion and found that applicant did not suffer any industrial injury. (Joint Exhibit 104, p. 50.) In part, Dr. Ansel based his opinion on applicant's credibility as a patient and noted "some degree of non-physiologic and exaggerated responses." (Id. at p. 4.)

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302; Lab. Code 3202.5; 3600(a)

Applicant has the initial burden of proving industrial causation by showing the employment was a contributing cause; must prove by preponderance of evidence that injury occurred AOE/COE.

Applied to find applicant failed to meet burden of proof for injury AOE/COE.

From the decision · page 4When applicant claims a physical injury, applicant has the initial burden of proving industrial causation by showing the employment was a contributing cause. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302; § 5705.) Applicant must prove by a preponderance of the evidence that an injury occurred AOE/COE. (Lab. Code1, § 3202.5; 3600(a).)

Applicant's testimony was inconsistent with contemporaneous medical records and showed changing stories regarding injury; applicant exhibited non-physiologic and exaggerated responses during examination.

From the decision · page 6Applicant next argues that I exhibited bias in noting that he was nervous. Such a discussion was not bias toward applicant. I understand that every person who testifies can experience nervousness. When I see that, I attempt to assist them in alleviating any nervousness, which also assists the court reporting in taking down an accurate record. the applicant appeared at trial to be a perfectly nice and polite person. The fact that he also appeared nervous did not factor into my judgement of his credibility. The primary credibility issue in this case is the substance of applicant's testimony and the changing story regarding the injury. Applicant's testimony was not corroborated by the contemporaneous medical record. The next issue regarding credibility were the opinions by Dr. Ansel regarding non-physiologic and exaggerated responses during the physical exam. My opinions as to the credibility of his testimony were based off the inconsistencies in the record and applicant's reported presentation at examination.