ADJ11905880 · December 21, 2022

The WCAB panel gave great weight to the WCJ's credibility determinations and found no substantial evidence to reject the WCJ's reliance on Dr. Einbund's medical reports, which considered the applicant's weight issues and attributed 100% of the orthopedic disability to playing professional hockey.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will deny reconsideration.

Dr. Einbund's medical reports attributed 100% of the applicant's orthopedic disability to playing professional hockey, considering weight issues and medical history

Favours Applicant prevailed

The WCJ and WCAB found these reports credible and persuasive, constituting substantial medical evidence supporting the applicant's claim and rejecting legal apportionment to weight gain.

From the decision · page 4professional hockey. Once, he was knocked unconscious when a player's knee hit his head. The Applicant continually sought medical treatment from the team trainers, who provided temporary relief to permit him to continue playing games and participating in practices (Michael Einbund, MD, 08/06/2019, pgs. 2 § 4 [Applicant's Exh. 5]). Dr. Einbund apportions 100% of the Applicant's orthopedic disability to playing professional hockey.

WCJ's credibility determinations given great weight due to opportunity to observe witness demeanor

Favours Applicant prevailed

The WCAB relied on the WCJ's credibility findings to uphold the medical evidence and deny reconsideration.

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)

Attributed 100% of the applicant's orthopedic disability to playing professional hockey, considering the applicant's weight issues and medical history, concluding no legal apportionment to weight gain was supported.

The WCJ and WCAB found Dr. Einbund's reports credible and persuasive, constituting substantial medical evidence supporting the applicant's claim.

From the decision · page 32. Dr. Michael Einbund, the Applicant's Qualified Medical Evaluator, issued reports dated 08/06/2019, 02/26/2020, and 01/21/2021 (Applicant's Exh. 5, 4, & 3). Dr. Einbund took a history of the Applicant's work activities as a goaltender and the history of the injuries he sustained, including injuries to his groin from collisions on the ice, hands, and fingers from catching hockey pucks, shoulders from falling on the ice, and to his head and neck when he collided with other players. He sustained jamming and jarring injuries involving the shoulders, elbows, wrists, hands, fingers, and ankles on a repetitive basis while playing

8 CCR 10605(a)(1)

8 CCR 10605(a)(1) - Timeliness of petition for reconsideration

Petition for Reconsideration was timely filed within the allowed period including additional calendar days for service by mail, fax, or e-mail.

From the decision · page 5Concerning the timeliness of the Petition for Reconsideration, because the regulations allow for five additional calendar days from the date of service when any document is served by mail, fax, or e-mail (8 CCR § 10605(a)(1)), the Petitioner for Reconsideration was timely.

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319

Credibility determinations by WCJ given great weight when based on witness demeanor

The WCAB gave great weight to the WCJ's credibility determinations because the WCJ observed the witness's demeanor.

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379

One physician's relevant and considered opinion may constitute substantial evidence even if inconsistent with others

The WCAB found Dr. Einbund's opinion substantial evidence despite conflicting opinions from other physicians.

From the decision · page 1We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

WCJ's credibility determinations given great weight because of opportunity to observe witness demeanor

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)

Dr. Einbund's medical reports considered applicant's weight issues and attributed disability to hockey injuries

From the decision · page 4professional hockey. Once, he was knocked unconscious when a player's knee hit his head. The Applicant continually sought medical treatment from the team trainers, who provided temporary relief to permit him to continue playing games and participating in practices (Michael Einbund, MD, 08/06/2019, pgs. 2 § 4 [Applicant's Exh. 5]). Dr. Einbund apportions 100% of the Applicant's orthopedic disability to playing professional hockey.