ADJ11226393 · July 20, 2021

Applicant did not present substantial medical evidence that the September 5, 2017 accident caused industrial injury, and the WCJ did not find applicant credible, so the claim was denied.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Ruling on Evidence, Findings of Fact and Order of April 26, 2021, wherein it was found that applicant did not sustain industrial injury to his neck, arms, upper extremities, back and shoulders while employed as a bus driver on September 5, 2017. The WCJ thus issued an order that applicant take nothing by way of his workers' compensation claim. In finding that applicant did not sustain compensable industrial injury, the WCJ found that applicant did not prove by a preponderance of the evidence that he sustained industrial injury, given that the WCJ did not find applicant's testimony or the history given to panel qualified medical evaluator physical medical specialist Katherine Robb-Ramirez, M.D. to be credible, and Dr. Robb-Ramirez opined that applicant did not sustain compensable industrial injury. Independently, the WCJ found that applicant's claim was barred by the post-termination provisions of Labor Code section 3600(a)(10), finding that applicant did not report his injury until after he was given notice of termination.

Applicant did not present substantial medical evidence that the September 5, 2017 accident caused industrial injury.

Favours Defendant prevailed

This lack of substantial medical evidence led to the denial of the claim for industrial injury.

From the decision · page 3Nevertheless, we affirm the substance of the WCJ's decision because applicant did not present substantial medical evidence that the minor September 5, 2017 accident caused industrial injury, meaning disability or the need for medical treatment. (Lab. Code sec. 3208.1, subd. (a).) Although applicant is correct that an industrial incident need only be a contributing cause of the need for medical treatment or disability to constitute an industrial injury, there remains a requirement that it be probable that the industrial contribution, however small, actually exists. Here, for the reasons stated by the WCJ in the Report, the applicant did not introduce substantial medical evidence of industrial contribution to any need for medical treatment or disability. Additionally, as stated in the Report, the WCJ did not find the applicant credible.

Applicant failed to disclose prior right arm injury and treatment to his treating physicians and the QME, detracting from his credibility and the weight of medical opinions.

Favours Defendant prevailed

This failure undermined the credibility of the applicant and the medical opinions supporting his claim.

From the decision · page 4Applicant was evaluated by Dr. Katherine Robb-Ramirez, M.D. as a Panel Qualified Medical Examiner for his claim of industrial injury on September 5, 2017. Applicant had a prior injury to his right upper extremity due to a slip and fall at a Taco Bell. Information regarding the prior injury was not initially given to Dr. Robb-Ramirez by Applicant. Applicant also failed to report this injury and related treatment to his treating physicians, Dr. Nicholas Vanderhyde, D.C. and Thomas Jacques, M.D.

There was insufficient evidence that the applicant was terminated rather than resigned, so the post-termination bar under Labor Code section 3600(a)(10) did not apply.

Favours Applicant prevailed

This led to deletion of the WCJ's finding that the claim was barred by post-termination provisions, but did not affect the denial of the industrial injury claim.

From the decision · page 2For the reasons stated by the WCJ in the Report, the relevant portions quoted below, we will affirm the finding of no industrial injury and the take-nothing order because the applicant did not prove that he sustained industrial injury. However, we will grant reconsideration and delete the WCJ's findings that the claim was barred because it was filed after notice of termination. We find insufficient evidence in the record that applicant was given notice of termination.

Dr. Robb-Ramirez opined that the applicant did not sustain compensable industrial injury and that the most probable industrial cause was a muscle strain to the cervical spine, but she was only 50% certain due to underlying prior injuries not disclosed by the applicant.

Based on an accurate medical history combined with examination, Dr. Robb-Ramirez's opinion was substantial medical evidence that the applicant did not prove industrial injury by a preponderance of the evidence.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Ruling on Evidence, Findings of Fact and Order of April 26, 2021, wherein it was found that applicant did not sustain industrial injury to his neck, arms, upper extremities, back and shoulders while employed as a bus driver on September 5, 2017. The WCJ thus issued an order that applicant take nothing by way of his workers' compensation claim. In finding that applicant did not sustain compensable industrial injury, the WCJ found that applicant did not prove by a preponderance of the evidence that he sustained industrial injury, given that the WCJ did not find applicant's testimony or the history given to panel qualified medical evaluator physical medical specialist Katherine Robb-Ramirez, M.D. to be credible, and Dr. Robb-Ramirez opined that applicant did not sustain compensable industrial injury. Independently, the WCJ found that applicant's claim was barred by the post-termination provisions of Labor Code section 3600(a)(10), finding that applicant did not report his injury until after he was given notice of termination.

Labor Code section 3208.1(a)

An industrial incident need only be a contributing cause of the need for medical treatment or disability to constitute an industrial injury, but it must be probable that the industrial contribution actually exists.

Applied to determine that the applicant did not prove industrial injury by a preponderance of the evidence.

From the decision · page 3Nevertheless, we affirm the substance of the WCJ's decision because applicant did not present substantial medical evidence that the minor September 5, 2017 accident caused industrial injury, meaning disability or the need for medical treatment. (Lab. Code sec. 3208.1, subd. (a).) Although applicant is correct that an industrial incident need only be a contributing cause of the need for medical treatment or disability to constitute an industrial injury, there remains a requirement that it be probable that the industrial contribution, however small, actually exists. Here, for the reasons stated by the WCJ in the Report, the applicant did not introduce substantial medical evidence of industrial contribution to any need for medical treatment or disability. Additionally, as stated in the Report, the WCJ did not find the applicant credible.

Applicant's failure to disclose prior right arm injury and treatment to treating physicians and the QME detracted from his credibility and the weight of medical opinions.

From the decision · page 4Applicant was evaluated by Dr. Katherine Robb-Ramirez, M.D. as a Panel Qualified Medical Examiner for his claim of industrial injury on September 5, 2017. Applicant had a prior injury to his right upper extremity due to a slip and fall at a Taco Bell. Information regarding the prior injury was not initially given to Dr. Robb-Ramirez by Applicant. Applicant also failed to report this injury and related treatment to his treating physicians, Dr. Nicholas Vanderhyde, D.C. and Thomas Jacques, M.D.