What the panel ordered
Petition for Reconsideration denied; applicant takes nothing by way of her workers' compensation claim.
Applicant seeks reconsideration of the WCJ's Findings of Fact of December 22, 2023, which found no industrial injury; the WCJ filed a Report and Recommendation on Petition for Reconsideration, and the WCAB panel denies the petition.
This docket was decided more than once. Shown here is the latest released decision; we also hold February 26, 2021.
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.
The WCJ found no industrial injury and that the Labor Code section 5402(b) presumption was not applicable; the WCJ's findings were adopted by the WCAB panel, which denied reconsideration.
From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of December 22, 2023, wherein it was found that while employed as a maintenance worker during a cumulative period ending on June 11 2018, applicant did not sustain industrial injury to her shoulder, back, knees, ankles, feet, and hands. The WCJ thus issued an order that applicant take nothing by way of her workers' compensation claim.1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ found no substantial medical evidence of industrial injury to the shoulder, back, knees, ankles, feet, and hands during the cumulative period ending June 11, 2018.
Favours Defendant prevailed
This finding was the basis for denying the applicant's claim and the petition for reconsideration.
From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact of December 22, 2023, wherein it was found that while employed as a maintenance worker during a cumulative period ending on June 11 2018, applicant did not sustain industrial injury to her shoulder, back, knees, ankles, feet, and hands. The WCJ thus issued an order that applicant take nothing by way of her workers' compensation claim.1
Dr. Andrade's QME report was relied upon as substantial evidence on causation and AOE/COE issues.
Favours Defendant prevailed
The WCJ and panel found Dr. Andrade's report the most accurate and factually supported medical evidence.
From the decision · page 4Dr. Andrade, the QME, did not find any arthritic disability and felt her complaints should have dissipated if she had not worked in over three months. She had advised the QME that her work was not overly strenuous.
Dr. Espinosa's personal medical records did not support work-related causation and indicated the calcaneal spur was unrelated to work.
Favours Defendant prevailed
The WCJ relied on these records to reject the claim of industrial injury.
From the decision · page 4As I read the medicals, it became clear that the applicant did not understand what she described as "the bone out of place in her foot", a calcaneal spur that is simply a calcium deposit of no clear medical etiology and often possibly related to obesity and diabetes. The first person to diagnose this calcium deposit was
The chiropractors' reports co-signed by Dr. Russman provided no causation information and were rejected as not helpful or insightful.
Favours Defendant prevailed
This lack of causation evidence contributed to the denial of the claim.
From the decision · page 5In this Petition for Reconsideration applicant's counsel complains that I didn't rely on any of the reporting's of the multiple chiropractors reporting cosigning with Dr. Russman. Quite frankly, they provide no information beyond range of motion. Nothing in these early reports establishes in the facts of causation. Nothing explains the gap in reporting or why she left work in the first place.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Did not find any arthritic disability and felt complaints should have dissipated if not working over three months; reporting was the best evidence on AOE/COE and causation issues.
The WCJ relied on Dr. Andrade's report as substantial medical evidence on causation and AOE/COE issues.
From the decision · page 4Dr. Andrade, the QME, did not find any arthritic disability and felt her complaints should have dissipated if she had not worked in over three months. She had advised the QME that her work was not overly strenuous.
Diagnosed calcaneal spur unrelated to work; did not indicate work causation; provided options for relief but did not push surgery.
The WCJ found Dr. Espinosa's records did not support work-related causation and relied on them in denying injury.
From the decision · page 4As I read the medicals, it became clear that the applicant did not understand what she described as "the bone out of place in her foot", a calcaneal spur that is simply a calcium deposit of no clear medical etiology and often possibly related to obesity and diabetes. The first person to diagnose this calcium deposit was
Reports provided no causation information beyond range of motion; did not review diagnostics; no firm link to causation found.
The WCJ rejected the chiropractors' reports co-signed by Dr. Russman as not helpful or insightful on causation.
From the decision · page 5In this Petition for Reconsideration applicant's counsel complains that I didn't rely on any of the reporting's of the multiple chiropractors reporting cosigning with Dr. Russman. Quite frankly, they provide no information beyond range of motion. Nothing in these early reports establishes in the facts of causation. Nothing explains the gap in reporting or why she left work in the first place.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code section 5402(b)
Labor Code section 5402(b) presumption of injury
The WCJ found the presumption not applicable and the petition did not raise error on this finding.
From the decision · page 11 Previously in this matter, in a Findings and Order of November 18, 2020, a different WCJ had found industrial injury, ruling that applicant's claim of injury was industrial by way of the Labor Code section 5402(b) presumption of injury, which had not been rebutted. In an Opinion and Decision After Reconsideration of February 26, 2021, we rescinded the November 18, 2020 decision and returned the matter back to the trial level for further proceedings and decision on the applicability of the Labor Code section 5402(b) presumption and applicant's claims of industrial injury. The panel for our February 26, 2021 decision included former Commissioner Marguerite Sweeney, who has retired from the Appeals Board, and Commissioner Katherine Williams Dodd, who is unavailable to participate in the current proceedings. They have been replaced in the instant proceedings by Commissioner Joseph V. Capurro and Deputy Commissioner Lisa A. Sussman. We note that the Findings of Fact of December 22, 2023, the WCJ found that the Labor Code section 5402(b) presumption was not applicable (Finding No. 3), but the instant Petition does not raise any claim of error as to that finding.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's loss of her son and related emotional distress
From the decision · page 4On June 11, 2018, the applicant's son was killed in a motor vehicle accident. Any parent will tell you how horrific this is, and it is the worst possible thing for a parent. Her medical records indicate that upon being informed of her son's death she struck her right fist against wall in her yard. I assume it was done in anguish. It was x-rayed for fractures, which were fortunately negative, but it remained painful and swollen.
Lack of independent corroboration for applicant's testimony on gradual symptoms and severity
From the decision · page 5Applicant's counsel also complains that I did not consider the applicant's testimony. I cannot judge credibility from the transcript without some sort of factual independent corroboration. There is nothing to support the gradual symptoms she claims to Dr. Russman, there is nothing to indicate severity, the failure to refer for medical care and not being taken seriously, cannot be independently corroborated.
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About this page
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