ADJ12765250 — California WCAB decision

ADJ12765250 · October 12, 2021

The WCAB affirmed the finding of no industrial injury to the psyche but deferred the issue of industrial injury to the legs, nervous system, teeth, restless leg syndrome, and headaches, reserving jurisdiction for further development.

Issues decided

Medical opinions weighed

Authorities named

District office

Sacramento

What the panel ordered

Applicant sought reconsideration of the WCJ Findings and Order of July 20, 2021, which found no industrial injury arising out of employment. The WCAB granted reconsideration and amended the Findings and Order to defer the issue of injuries other than to the psyche for further medical development.

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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.

Other disputed issueDeferredlegs · nervous system · teeth · restless leg syndrome · headaches

The WCAB deferred the issue of industrial injury to these body parts to allow the applicant to develop the medical record further, recognizing the lower causation standard for physical injuries compared to psyche injuries.

From the decision · page 2We will affirm the finding of no industrial injury to the psyche, for the reasons stated in the Report, as quoted below. However, we will grant reconsideration and amend the Findings and Order to defer the issue of body parts other than the psyche.

The facts that decided it

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

Dr. Francis's QME report was found better reasoned and more persuasive than Dr. Rowe's treating physician report.

Favours Defendant prevailed

This led to the finding of no industrial injury to the psyche.

From the decision · page 2In the Report, the WCJ discusses both Dr. Francis's September 23, 2020 report and Dr. Rowe's July 5, 2021 report in depth (Report at pp. 2-4) and concludes that Dr. Francis's report was "better reasoned and more persuasive." (Report at p. 4.) As stated in the Report, "At trial, Applicant offered reports by the treating physician Dr. Jessica Rowe however, the opinions of Dr. Rowe are less persuasive, contain no record review, appear self-serving, and consider an inadequate history. The QME Report by Dr. Francis, upon which the findings and opinion are based, is substantial medical evidence and is better reasoned and more persuasive." (Report at p. 2.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) We note that in our own review of the record, Dr.

Applicant reported physical symptoms such as restless leg syndrome and headaches coinciding with the claimed injury period, but the issue was deferred for further medical development.

Favours Applicant prevailed

The WCAB deferred the issue of physical injuries to allow further development of the medical record.

From the decision · page 2We will affirm the finding of no industrial injury to the psyche, for the reasons stated in the Report, as quoted below. However, we will grant reconsideration and amend the Findings and Order to defer the issue of body parts other than the psyche.

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.

QMERelied upon · psychology

Found 70% of the psychological injury due to non-industrial factors and 30% due to employment events; diagnosed Generalized Anxiety Disorder; found the report better reasoned and more persuasive than Dr. Rowe's.

The WCJ and WCAB relied on Dr. Francis's report as substantial medical evidence and found it better reasoned and more persuasive than Dr. Rowe's report.

From the decision · page 2In the Report, the WCJ discusses both Dr. Francis's September 23, 2020 report and Dr. Rowe's July 5, 2021 report in depth (Report at pp. 2-4) and concludes that Dr. Francis's report was "better reasoned and more persuasive." (Report at p. 4.) As stated in the Report, "At trial, Applicant offered reports by the treating physician Dr. Jessica Rowe however, the opinions of Dr. Rowe are less persuasive, contain no record review, appear self-serving, and consider an inadequate history. The QME Report by Dr. Francis, upon which the findings and opinion are based, is substantial medical evidence and is better reasoned and more persuasive." (Report at p. 2.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) We note that in our own review of the record, Dr.

PTPRejected · psychology

Found over 50% of the injury industrial, attributing 67% industrial causation to work-related factors; report considered less persuasive and self-serving by the WCJ and WCAB.

The WCJ and WCAB found Dr. Rowe's opinions less persuasive, self-serving, and lacking record review, thus giving them less weight.

From the decision · page 2In the Report, the WCJ discusses both Dr. Francis's September 23, 2020 report and Dr. Rowe's July 5, 2021 report in depth (Report at pp. 2-4) and concludes that Dr. Francis's report was "better reasoned and more persuasive." (Report at p. 4.) As stated in the Report, "At trial, Applicant offered reports by the treating physician Dr. Jessica Rowe however, the opinions of Dr. Rowe are less persuasive, contain no record review, appear self-serving, and consider an inadequate history. The QME Report by Dr. Francis, upon which the findings and opinion are based, is substantial medical evidence and is better reasoned and more persuasive." (Report at p. 2.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) We note that in our own review of the record, Dr.

The rules the panel named

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

Labor Code section 3208.3(b)(1)

Labor Code section 3208.3(b)(1) requires that an employee demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.

The WCJ and WCAB applied this standard to find that the work-related cause must be greater than 50% of all causal factors for psychiatric injury claims.

From the decision · page 4The employee has the burden to prove the claim for workers' compensation benefits. Hercules Powder Co. v. IAC (1933) 131 Cal. App. 587. In order to prove psychiatric injury is compensable, Labor Code section 3208.3(b)(l) provides that "an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." This means the work-related cause has to be greater than 50% of all the causal factors. Department of Corrections v. WCAB (Garcia) (1999) 64 Cal. Comp. Cases 1356.

Labor Code section 3203.8

The heightened causation standard of Labor Code section 3203.8 applicable to psyche injuries does not apply to physical injuries; the relevant inquiry for physical injuries is whether work-related stress is a contributing cause.

The WCAB applied this standard to defer the issue of physical injuries, recognizing the lower causation standard compared to psyche injuries.

From the decision · page 3We note that in the Report, the WCJ writes, "any physical manifestations of physical injury are nonindustrial" because the psyche injury was found noncompensable. However, this heightened causation standard of Labor Code section 3203.8 applicable to psyche injuries does not apply to physical injuries, even if the injuries were caused by emotional stress. (Verizon/GTE v. Workers' Comp. Appeals Bd. (Garth) (2002) 67 Cal.Comp.Cases 856, 857 [writ den.]; May Co. Department Stores v. Workers' Comp. Appeals Bd. (Hull) (2001) 66 Cal.Comp.Cases 1378, 1380 [writ den.]; City of Cypress v. Workers' Comp. Appeals Bd. (Spernak) (1996) 61 Cal.Comp.Cases 612, 613 [writ den.].) The relevant inquiry in a claim for physical injury, such as a claim for injury in the form of headaches or restless leg syndrome, is whether the work-related stress is a contributing cause to the applicant's injury. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 418 [33 Cal.Comp.Cases 660]; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].)

ADJ12765250 · October 12, 2021

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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