ADJ12881816 — California WCAB decision

What the panel ordered

The Appeals Board granted the petition for reconsideration, rescinded the May 1, 2024 Findings and Award, and returned the matter to the WCJ for further proceedings.

Applicant sought reconsideration of the May 1, 2024 Findings and Award, which the WCJ had issued, and the WCJ had recommended denial of the petition. The Appeals Board granted reconsideration, rescinded the prior Findings and Award, and returned the matter to the WCJ for further proceedings.

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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/COERemandedfeet · lungs

There was insufficient substantial evidence to support the WCJ's finding that the feet injury was not industrial and to determine the number of cumulative injuries to the lungs.

From the decision · page 9Here, the reporting of Dr. Lonky offers only his conclusions regarding the existence of a cumulative injury to applicant's lungs and does not address the issue of whether there was one or two cumulative injuries. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687, 1691].) Further, Dr. Marino's six- page report regarding applicant's injury to her feet was conclusionary and did not set forth the reasoning behind his opinion that the injury to her feet was not industrial. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 407.) Therefore, there is a lack of substantial evidence on the issue of whether there was one or two cumulative injuries to the lungs as well as a lack of substantial evidence to support the finding that the injury to the feet was not industrial.

The facts that decided it

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

Dr. Lonky's medical reports did not address whether there was one or two cumulative injuries to the lungs.

Favours Applicant prevailed

This lack of clarity resulted in insufficient substantial evidence on the cumulative injury issue, leading to remand for further development.

From the decision · page 9Here, the reporting of Dr. Lonky offers only his conclusions regarding the existence of a cumulative injury to applicant's lungs and does not address the issue of whether there was one or two cumulative injuries. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687, 1691].) Further, Dr. Marino's six- page report regarding applicant's injury to her feet was conclusionary and did not set forth the reasoning behind his opinion that the injury to her feet was not industrial. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 407.) Therefore, there is a lack of substantial evidence on the issue of whether there was one or two cumulative injuries to the lungs as well as a lack of substantial evidence to support the finding that the injury to the feet was not industrial.

Dr. Marino's report on the foot injury was conclusionary and lacked reasoning to support the non-industrial finding.

Favours Applicant prevailed

This absence of reasoning led to a lack of substantial evidence supporting the WCJ's finding that the foot injury was not industrial, necessitating remand.

From the decision · page 9Here, the reporting of Dr. Lonky offers only his conclusions regarding the existence of a cumulative injury to applicant's lungs and does not address the issue of whether there was one or two cumulative injuries. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687, 1691].) Further, Dr. Marino's six- page report regarding applicant's injury to her feet was conclusionary and did not set forth the reasoning behind his opinion that the injury to her feet was not industrial. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 407.) Therefore, there is a lack of substantial evidence on the issue of whether there was one or two cumulative injuries to the lungs as well as a lack of substantial evidence to support the finding that the injury to the feet was not industrial.

The record was insufficient to determine the correct occupational group number for the applicant's permanent disability rating.

Favours neutral

This insufficiency required remand for further factual development on the occupational group issue.

From the decision · page 11Therefore, the WCJ's finding of occupational group 213 is not an accurate reflection of applicant's job duties. Based upon the current record however, there is insufficient evidence to determine whether applicant's occupational group should be 490 or some other group number.

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.

QMENot substantial evidence · internal medicine and pulmonary disease

Initially concluded sarcoidosis likely from 2005 to 2009 but could not link to workplace exposure without more info; later apportioned 20% of disability to employment with defendant and 80% to prior firefighting work.

Dr. Lonky's reports were considered but found insufficient to determine whether there was one or two cumulative injuries to the lungs.

From the decision · page 9Here, the reporting of Dr. Lonky offers only his conclusions regarding the existence of a cumulative injury to applicant's lungs and does not address the issue of whether there was one or two cumulative injuries. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687, 1691].) Further, Dr. Marino's six- page report regarding applicant's injury to her feet was conclusionary and did not set forth the reasoning behind his opinion that the injury to her feet was not industrial. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 407.) Therefore, there is a lack of substantial evidence on the issue of whether there was one or two cumulative injuries to the lungs as well as a lack of substantial evidence to support the finding that the injury to the feet was not industrial.

QMENot substantial evidence · primary podiatric medicine

Concluded plantar foot injury predated employment and was not caused or aggravated by employment with defendant; report was conclusionary without reasoning to support non-industrial finding.

Dr. Marino's report lacked substantial evidence to support the non-industrial finding for the foot injury.

From the decision · page 9Here, the reporting of Dr. Lonky offers only his conclusions regarding the existence of a cumulative injury to applicant's lungs and does not address the issue of whether there was one or two cumulative injuries. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687, 1691].) Further, Dr. Marino's six- page report regarding applicant's injury to her feet was conclusionary and did not set forth the reasoning behind his opinion that the injury to her feet was not industrial. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 407.) Therefore, there is a lack of substantial evidence on the issue of whether there was one or two cumulative injuries to the lungs as well as a lack of substantial evidence to support the finding that the injury to the feet was not industrial.

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 the injury arose out of and in the course of employment (AOE/COE) by a preponderance of the evidence.

The Board applied this standard to assess the burden of proof for injury causation.

From the decision · page 5I. The employee bears the burden of proving the injury arose out of and in the course of employment (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.) An injury may be either "specific," occurring as the result of one incident or exposure which causes disability or need for medical treatment; or "cumulative," occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment. (Lab Code § 3208.1.) "In any given situation, there can be more than one injury, either specific or cumulative or a combination of both, arising from the same event or from separate events." (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234, citing Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 1271.) The number and nature of the injuries suffered are questions of fact for the WCJ or the Appeals Board to determine. (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234-235.) Labor Code section 3208.21 provides:

Lab. Code § 3208.2

When disability results from combined effects of two or more injuries, all questions of fact and law shall be separately determined with respect to each such injury, including apportionment.

The Board considered this statute in evaluating cumulative injury and apportionment issues.

From the decision · page 5When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit.

Lab. Code § 5500.5(a)

Liability for cumulative injury or occupational disease shall not be apportioned to prior or subsequent years; evidence of disability due to specific injury or nonindustrial causes may be admissible for apportionment.

The Board referenced this statute regarding apportionment of cumulative injury liability.

From the decision · page 8Section 5500.5 was enacted in 1951 to codify the holding in Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79 [11 Cal.Comp.Cases 226] that an employee who sustains an injury as a result of a progressive occupational disease may obtain an award for the entire amount of permanent disability from any one employer or insurer and the defendant held liable will have the burden of seeking contribution from other employers. Section 5500.5 states

McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408

A medical opinion must be predicated on reasonable medical probability and set forth the reasoning behind the opinion to constitute substantial evidence.

The Board applied this standard to evaluate the sufficiency of medical opinions presented.

From the decision · page 8be predicated on reasonable medical probability. (McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [33 Cal.Comp.Cases 660].) Also, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647].) "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].)

ADJ12881816 · July 22, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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