ADJ11986060 — California WCAB decision

What the panel ordered

Findings and Order rescinded and substituted; issues of injury AOE/COE deferred; matter returned to WCJ for further proceedings

Petition for Reconsideration granted to further study factual and legal issues; original Findings and Order rescinded and new Findings and Order issued deferring injury AOE/COE issues and ordering further evaluation

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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/COERemandedinternal system

The claim of internal injury was deferred for further development and evaluation by an internal medicine QME.

From the decision · page 4Accordingly, we rescind the F&O and substitute a new Findings and Order deferring the issues of injury AOE/COE to applicant's back, neck, shoulders, arms, wrists, hands, fingers, knees, and internal system; we order that applicant attend an evaluation by an internal medicine QME; and we return the matter to the WCJ for further proceedings consistent with this opinion and to issue a new decision from which any aggrieved person may timely seek reconsideration.

AOE/COE

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

QME Dr. Danzig did not provide an opinion on whether applicant's employment was a cause of the orthopedic condition.

Favours Applicant prevailed

Without a causation opinion, the WCJ's original decision lacked substantial evidence to support a finding of no injury AOE/COE.

From the decision · page 4An 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].) When deciding a medical issue, such as whether an applicant sustained a cumulative trauma injury, the WCJ must utilize expert medical opinion. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687]; Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) As discussed earlier, Dr. Danzig did not address the issue of whether applicant's employment with defendant was a causative factor regarding applicant's orthopedic condition. Thus, his report is not substantial evidence upon which a decision may be based.

Lack of medical records documenting complaints during employment.

Favours Applicant prevailed

This factor alone is not sufficient to conclude no cumulative injury; further development is needed.

From the decision · page 3The report from QME Dr. Danzig contains a detailed description of the physical demands of applicant's work for defendant as a painter, and it notes that applicant started working for defendant in May 1995. (See App. Exh. 2, pp 2 § 4.) "Scenario #1" is premised on applicant having had, "... the onset of pain in his neck, right and left shoulders, right and left hands and wrists, low back and right and left knees during the course of his employment" and "Scenario #2" is premised on there being, "... no mention of any neck, right or left shoulder, right or left hand/wrist, low back, or right or left knee complaints..." while applicant was working for defendant. (App. Exh. 2, p. 66.) It appears that both scenarios could be accurate, i.e. applicant could have experienced pain during the course of his employment and not have sought treatment until he stopped working for defendant. It is important to note that the lack of prior records may be a factor to consider as to the issue of cumulative injury, but the lack of those records is not in and of itself a basis for concluding that there was no cumulative injury. Pursuant to Labor Code section 3208.1 (quoted above), a cumulative injury is the result of repetitive mentally or physically traumatic activities extending over a period of time. Dr. Danzig clearly described the physical demands of applicant's

ADJ11986060 · November 16, 2021

What the panel ordered

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The facts that decided it

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