ADJ12582828 — California WCAB decision

What the panel ordered

Granting defendant's petition for reconsideration, rescinding the WCJ's FA&O, and issuing a new decision deferring permanent disability determination pending further record development.

Defendant sought reconsideration of the WCJ's Findings, Award and Order issued October 11, 2022; WCAB granted reconsideration, rescinded the FA&O, and issued a new decision.

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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/COEApplicant prevailedknees · elbows · wrists

The WCJ's finding of injury AOE/COE to the knees, elbows and wrists is supported by substantial evidence including the uncontradicted QME opinion and credible applicant testimony, which the WCJ found persuasive.

From the decision · page 7The record reflects that the QME Dr. Dell performed a thorough and complete evaluation of applicant. He reviewed applicant's voluminous medical records and obtained additional diagnostic testing of the thoracic spine, lumbar spine and both knees. His causation opinion was provided to a reasonable medical probability and is consistent with the several years that applicant performed repetitive work for defendant. There is no medical evidence in the record challenging the conclusions reached by Dr. Dell. In the absence of contrary evidence, we are bound to accept the uncontradicted and unimpeached findings of the medical expert where it constitutes substantial medical evidence to support industrial causation for the employee's injury.

The facts that decided it

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

QME Dr. Stephen Dell's uncontradicted medical opinion supported injury AOE/COE to knees, elbows and wrists.

Favours Applicant prevailed

This medical opinion constituted substantial evidence supporting the injury findings in favor of the applicant.

From the decision · page 7The record reflects that the QME Dr. Dell performed a thorough and complete evaluation of applicant. He reviewed applicant's voluminous medical records and obtained additional diagnostic testing of the thoracic spine, lumbar spine and both knees. His causation opinion was provided to a reasonable medical probability and is consistent with the several years that applicant performed repetitive work for defendant. There is no medical evidence in the record challenging the conclusions reached by Dr. Dell. In the absence of contrary evidence, we are bound to accept the uncontradicted and unimpeached findings of the medical expert where it constitutes substantial medical evidence to support industrial causation for the employee's injury.

Applicant's credible testimony supported the finding of injury AOE/COE to knees, elbows and wrists.

Favours Applicant prevailed

The WCJ gave great weight to the applicant's testimony, which was not contradicted by substantial evidence, favoring the applicant's position.

From the decision · page 7The WCJ also based her finding of injury AOE/COE to the knees, elbows and wrists in part on applicant's credible testimony. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza,

There is insufficient evidence in the record to determine the correct occupational group number for permanent disability rating.

Favours neutral

This lack of evidence necessitated deferral and further development of the record to resolve the occupational group dispute.

From the decision · page 9There is insufficient evidence in the current record to determine whether applicant's occupational group number is 322 or 420. Upon return to the trial level, the parties must further develop the record on this issue. An updated job analysis may be obtained and any other necessary discovery to address this dispute again by the trier of fact.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence; industrial causation must be 'not zero' to show sufficient contribution from work exposure; all reasonable doubts resolved in favor of the employee.

Applied to evaluate sufficiency of evidence for injury AOE/COE to knees, elbows and wrists.

From the decision · page 6Defendant contends that there is not substantial evidence to support the finding of injury AOE/COE to the knees, elbows and wrists. The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.)1 Applicant must only show that industrial causation was "not zero" to show sufficient contribution from work exposure. (Clark, supra, 61 Cal.4th at p. 303.) It has also long been established that "all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (Guerra v. Workers' Comp. Appeals Bd. (2016) 246

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Decisions of the Appeals Board must be supported by substantial evidence; medical opinion must be based on reasonable medical probability and adequate examination; surmise or speculation is insufficient.

Applied to assess the medical evidence supporting injury AOE/COE findings.

From the decision · page 7a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Dalen v. Workmen's Comp. Appeals Bd. (1972) 26 Cal.App.3d 497

Permanent disability rating must consider the injured employee's occupation; occupational group number is a question of fact; employee entitled to highest factor occupation if duties performed; evidence must show actual performance of duties for higher group.

Applied to determine the need for further development on occupational group number for permanent disability rating.

From the decision · page 8The 2005 PDRS contains 45 occupational group numbers. (2005 PDRS, p. 1-8.) Which occupational group number applies is a question of fact to be determined by the trier of fact. (Dalen v. Workmen's Comp. Appeals Bd. (1972) 26 Cal.App.3d 497, 503 [37 Cal.Comp.Cases 393].) It is well established that an "employee is entitled to be rated for the occupation which carries the highest factor in the computation of disability." (Id. at pp. 505-506.) However, to be entitled to an occupational group, there must be evidence that applicant actually performed the duties required of the more arduous occupation. (Holt v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 1257 [51 Cal.Comp.Cases 576].) An employee may also be entitled to a higher occupational group number for an activity that is an integral part of the employee's occupation. (National Kinney v. Workers' Comp. Appeals Bd. (Casillas) (1980) 113 Cal.App.3d 203, 215-216 [45 Cal.Comp.Cases 1266].)

ADJ12582828 · January 3, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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