ADJ12915738 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied by the WCAB panel on April 26, 2021.

Defendant sought reconsideration of the Findings and Award issued by the WCJ on February 8, 2021, which found applicant sustained injury AOE/COE to back and right wrist during employment.

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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 prevailedback · right wrist

The WCJ's findings were based on applicant's credible and unrebutted testimony and the substantial medical evidence from treating physician Dr. Offenberger, whose opinions were found to be substantial evidence despite conflicting QME reports. The WCAB gave great weight to the WCJ's credibility determinations and found no reason to disturb the findings.

From the decision · page 5The Findings and Award and Opinion on Decision were based upon a review of the entire record which included that applicant's credible and unrebutted testimony along with the medical reporting.... The Applicant's unrebutted testimony was that he was not aware of what a continuous trauma was until he saw his attorney.... The Applicant also credibly testified that while he did have prior specific injuries including injury to his back, that he never fully recovered from his injuries and that his ongoing work duties aggravated his back and right wrist. His testimony regarding his ongoing heavy work duties and repetitive hand use was credible and not rebutted. (Report, pp. 2 § 3.)

The facts that decided it

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

Applicant's credible and unrebutted testimony about ongoing heavy work duties and repetitive hand use aggravating his back and right wrist injuries.

Favours Applicant prevailed

Credibility determinations by the WCJ were given great weight and supported the finding of injury AOE/COE.

From the decision · page 5The Findings and Award and Opinion on Decision were based upon a review of the entire record which included that applicant's credible and unrebutted testimony along with the medical reporting.... The Applicant's unrebutted testimony was that he was not aware of what a continuous trauma was until he saw his attorney.... The Applicant also credibly testified that while he did have prior specific injuries including injury to his back, that he never fully recovered from his injuries and that his ongoing work duties aggravated his back and right wrist. His testimony regarding his ongoing heavy work duties and repetitive hand use was credible and not rebutted. (Report, pp. 2 § 3.)

Dr. Offenberger's medical reports were consistent with applicant's testimony and based on thorough examination and history, providing substantial evidence of injury AOE/COE.

Favours Applicant prevailed

The WCAB found these reports reliable and not speculative, supporting the injury finding.

From the decision · page 6Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, or guess; and the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions, a mere legal conclusion does not furnish a basis for a finding. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workmen's Comp. Appeals Bd., supra; Escobedo v. Marshalls, supra.) Our review of the reports from Dr. Offenberger (see App. Exhs. 1 § 17) indicate that he examined applicant on several occasions, reviewed the medical record/diagnostics, and took a history including a job description. Dr. Offenberger's discussion of applicant's symptoms and the physical demands of his work are consistent with applicant's unrebutted trial testimony. The doctor explained the bases for his conclusions and his opinions do not appear to be based on surmise, speculation, or guess. Thus, his reports constitute substantial evidence, and again, based upon our review of the entire record, we see no reason to disturb the WCJ's conclusions as stated in the F&A.

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.

PTPRelied upon

Found industrial injury to back and right wrist based on examination, history, and review of medical records consistent with applicant's testimony.

The doctor examined the applicant on several occasions, reviewed medical records and diagnostics, and took a history including job description. His opinions were consistent with applicant's unrebutted testimony and were not based on speculation.

From the decision · page 2There are no reported industrial injuries to the right hand or wrist. However, in working up the left wrist, neurodiagnostic studies were obtained which showed the presence of carpal tunnel syndrome in the right wrist as well, and he does indeed have symptoms in the right wrist and hand. (p. 3.)... Current Complaints included: Right wrist pain, which is less intense than the left, radiates distally into the hand. There is numbness and tingling of all the fingers of the right hand with certain activities, especially if prolonged or repetitive. Intermittent mid and lower back pain which occurs in the late afternoon and evening. The pain radiates into the right buttock and proximal posterior thigh. It is made worse by prolonged bending, stooping, prolonged sitting or standing over one hour, and lifting over 50-60 pounds. It is relieved by heat. (pp. 3 § 4)... The patient's back condition has heretofore received only brief acute symptomatic treatment on each occasion. It was apparently placed on the backburner while his other injuries were being addressed. I recommend he receive physical therapy to the lumbar spine twice a week for three weeks and hereby request authorization. (App. Exh.1, p. 9.)

QMERejected · orthopedic

Found no evidence to support injury to right wrist, hand, or back on an industrial basis.

The QME limited evaluation to left wrist initially and later found no industrial injury to right wrist, hand, or back based on examination and history taken.

From the decision · page 2The patient indicated today that the only body part that he is presenting for evaluation is the left wrist. The patient stated that he will only agree to have the left wrist evaluation as he has been instructed by his attorney. He did not wish to discuss any other parts beside the left wrist on today's evaluation on 02/21/20 in Costa Mesa, California. Furthermore, the records that have been provided to me are only regarding the left wrist. The letter from Helmsman only mentions the left wrist. Therefore, this evaluation will be limited to the left wrist only. (Def. Exh. A, p. 2.)

The rules the panel named

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

Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399

A medical opinion must set forth reasoning behind the opinion and not be based on speculation or guess to constitute substantial evidence.

The WCAB found Dr. Offenberger's reports met this standard and constituted substantial evidence.

From the decision · page 5To constitute substantial evidence, a medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33

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

The relevant and considered opinion of one physician may constitute substantial evidence even if inconsistent with others, unless based on surmise or speculation.

The WCAB relied on Dr. Offenberger's opinion despite conflicting QME reports.

From the decision · page 5Defendant argues that Dr. Offenberger's opinions are not substantial evidence because he "is the only doctor out of the five doctor's opinions submitted that found industrial injury to the back and right wrist." (Petition, p. 6.) It is also well established that the relevant and considered opinions of one physician, though inconsistent with other medical opinions, may constitute substantial evidence and that the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. Appeals. Bd. (1970) 3 Cal.3d 372, 378 [35 Cal. Comp. Cases 525, 529]; Chu v. Workers' Comp. Appeals Bd. (1996) 49 Cal.App.4th 1176 [61 Cal.Comp.Cases 926].) Clearly, defendant's argument as to Dr. Offenberger's opinions is inconsistent with the applicable case law, as cited above. Also, Dr. Gillman treated applicant for his May 19, 2014 injury, and Dr. Nottage treated applicant for his April 23, 2016 injury. Neither doctor evaluated or treated applicant for the cumulative injury with the March 2, 2018 end date. Their reports do not address the cumulative injury claim and are not pertinent to the issues herein.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible and unrebutted testimony about ongoing heavy work duties and repetitive hand use aggravating back and right wrist injuries.

From the decision · page 5The Findings and Award and Opinion on Decision were based upon a review of the entire record which included that applicant's credible and unrebutted testimony along with the medical reporting.... The Applicant's unrebutted testimony was that he was not aware of what a continuous trauma was until he saw his attorney.... The Applicant also credibly testified that while he did have prior specific injuries including injury to his back, that he never fully recovered from his injuries and that his ongoing work duties aggravated his back and right wrist. His testimony regarding his ongoing heavy work duties and repetitive hand use was credible and not rebutted. (Report, pp. 2 § 3.)

Medical recordsfavours Applicant prevailed

Dr. Offenberger's medical reports consistent with applicant's testimony and based on thorough examination and history.

From the decision · page 6Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, or guess; and the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions, a mere legal conclusion does not furnish a basis for a finding. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workmen's Comp. Appeals Bd., supra; Escobedo v. Marshalls, supra.) Our review of the reports from Dr. Offenberger (see App. Exhs. 1 § 17) indicate that he examined applicant on several occasions, reviewed the medical record/diagnostics, and took a history including a job description. Dr. Offenberger's discussion of applicant's symptoms and the physical demands of his work are consistent with applicant's unrebutted trial testimony. The doctor explained the bases for his conclusions and his opinions do not appear to be based on surmise, speculation, or guess. Thus, his reports constitute substantial evidence, and again, based upon our review of the entire record, we see no reason to disturb the WCJ's conclusions as stated in the F&A.

ADJ12915738 · April 26, 2021