ADJ13504941 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Applicant challenging the Findings and Order dated October 31, 2022, denied by WCAB panel on December 30, 2022.

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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/COEDefendant prevailedshoulders

The WCJ found the Applicant not credible and noted inconsistencies in medical reports and testimony, concluding the Applicant did not meet the burden of proof for injury AOE/COE.

From the decision · page 4Moreover, wherever else the Petition references medical reports or other assertions, there are no citations in support of the same. The Applicant did not meet his burden of proof on the issue of injury AOE/COE It is well established that a specific injury needs to cause disability or need for medical treatment.4 An Applicant has the burden of proof by a preponderance of the evidence to establish that an injury occurred.5 Moreover, it is well established that medical opinions must be based on substantial medical evidence.6 Part of substantiality includes the factual accuracy of what is presented therein, as well as the credible testimony of witnesses in support of said facts. The trial judge is afforded great latitude in credibility determination.7 Regarding the finding of no injury, the Petition takes issue finding that Dr. Haronian's opinions are not substantial. The Petition seeks to blame Applicant's prior attorney for the wrong

The facts that decided it

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

Applicant was not credible and gave inconsistent statements about the injury and treatment.

Favours Defendant prevailed

This undermined the burden of proof for injury AOE/COE, leading to denial of the claim.

From the decision · page 5The undersigned did not find the Applicant credible. This determination was made based on the undersigned's ability to observe the witness making his statements while testifying, in connection with his demeanor while making them.9 In addition to observing the Applicant's demeanor when testifying, the undersigned noted inconsistencies in the medical reporting. Applicant tells the PQME that he sought treatment for the alleged injury, but that treatment was delayed because of COVID-19. (Joint Exhibit 1, Report of PQME Dr. Smith, 5/12/21 at p. 3). This is objectively controverted by the fact that the Applicant was actively treating with Dr. Wilker for his other ongoing legal injury claims, during COVID-19 concerns, and receiving work restrictions from his other ongoing legal proceedings from March 2020 to August 2020. (MOH & SOE, Page 5, Lines 8-10).

Applicant filed the claim more than one year after the injury without lost time or medical treatment beyond first aid.

Favours Defendant prevailed

This barred the claim under the statute of limitations as the employer was not required to provide a claim form.

From the decision · page 7Proceedings for the collection of benefits must commence within one year of the date of injury or the last date on which medical benefits were furnished.10 The employee bears the initial burden of notifying the employer of an injury, unless such notice is unnecessary because the employer already knows of the injury or claimed injury from other sources. The employer then has the burden to inform the worker of possible compensation rights and provide a claim form.11 Failing to provide a claim form tolls the statute of limitations (SOL) during the time the employee actually remains unaware of his possible rights.12 Providing a claim form is not required when an applicant does not lose time from work and does not require medical treatment beyond first aid.13 Defendant has the burden of proof on this affirmative defense.14

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.

PTPRejected

Dr. Haronian stated unequivocally that the Applicant was injured on December 1, 2019, but also noted a history of injury in 2018, with inconsistencies in the reports.

The WCJ found the reports inconsistent and the Applicant not credible, diminishing the weight of Dr. Haronian's opinions.

From the decision · page 5date of injury appearing at times in the treating doctor reports.8 The undersigned notes that Applicant's current counsel had ample opportunity to correct these issues, either by way of supplemental report or by deposition, but did not. Instead, Dr. Haronian's reports are offered into evidence without modification or comment by the party now taking issues with the deficiencies therein. The undersigned again notes that Dr. Haronian states, unequivocally, that the Applicant was injured on December 1, 2019. (Applicant's Exhibit 1, Report of Dr. Haronian, 1/5/21 at p. 7, emphasis added). In the very same report, Dr. Haronian says the Applicant relays a history of injury in 2018. (Id. at p. 1, emphasis added). The heading of this report discusses injury in 2019. (Id.).

QMERejected

Dr. Smith deferred to the trier of fact on whether an injury occurred and his subsequent report recommending surgery was contradictory and not substantial evidence.

The WCJ found Dr. Smith's reports contradictory and not substantial evidence on causation.

From the decision · page 6The PQME reporting of Dr. Michael Smith is not substantial evidence on the issue of AOE/COE. The doctor ultimately defers to the trier of fact as to whether an injury occurred. (Joint Exhibit 3, Report of PQME Dr. Smith, 10/12/21 at p. 3). Applicant as well has a subsequent incident on May 3, 2021, at a casino, where he had to seek medical attention for bilateral shoulder complaints. (Joint Exhibit 5, Bates Stamp Page 93). Instead of addressing those records and providing analysis, the PQME simply states that surgery is needed. (Joint Exhibit 4, Report of PQME Dr. Smith, 4/12/22 at p. 5). This is contradictory to the preceding report that defers to the trier of fact for causation, and it appears as if the doctor might not have even read or recalled his prior determinations. This is not substantial medical evidence.

secondary_treaterRejected

Medical records from Dr. Wilker showed no mention of the 2018 incident and contradicted the Applicant's claim of delayed treatment due to COVID-19, undermining credibility.

The WCJ found the Applicant not credible partly due to inconsistencies with Dr. Wilker's records.

From the decision · page 5The undersigned did not find the Applicant credible. This determination was made based on the undersigned's ability to observe the witness making his statements while testifying, in connection with his demeanor while making them.9 In addition to observing the Applicant's demeanor when testifying, the undersigned noted inconsistencies in the medical reporting. Applicant tells the PQME that he sought treatment for the alleged injury, but that treatment was delayed because of COVID-19. (Joint Exhibit 1, Report of PQME Dr. Smith, 5/12/21 at p. 3). This is objectively controverted by the fact that the Applicant was actively treating with Dr. Wilker for his other ongoing legal injury claims, during COVID-19 concerns, and receiving work restrictions from his other ongoing legal proceedings from March 2020 to August 2020. (MOH & SOE, Page 5, Lines 8-10).

The rules the panel named

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

Cal. Code Regs., tit. 8, 10842(b)(2); 1 CCR 10520(a); California Rules of Court 2.111(1); CCR 10945(b)

Petitions for Reconsideration must include the attorney's name and State Bar Number and support evidentiary statements with specific references to the record.

The Petition for Reconsideration was denied for failing to comply with these procedural requirements.

From the decision · page 1In addition, we find it necessary to admonish applicant's attorney Keith Seagull for failing to include his state bar number with his name on the heading of the Petition for Reconsideration contrary to the Rules of the Administrative Director (AD), Rule 10205.12(a)(4) and for failing to support his arguments with specific references to the record. (Cal. Code Regs., tit. 8, § 10842(b)(2).) Future violations may lead to the imposition of sanctions. (Lab. Code, § 5813; Cal. Code Regs., tit. 8, § 10561.)

Labor Code 3208.1(a); Labor Code 5705; Labor Code 3202.5; Escobedo v. Marshalls, CNA Ins. Co., 70 Cal. Comp. Cases 604, 620 (W.C.A.B. April 19, 2005); Garza v. Workers' Comp. Appeals Bd., 3 Cal. 3d 312; Schmidt v. Superior Court, 44 Cal. App. 5th 570

An applicant has the burden of proof by a preponderance of the evidence to establish injury and causation, supported by substantial medical evidence.

The WCJ found the Applicant did not meet the burden of proof for injury AOE/COE due to lack of credible evidence.

From the decision · page 4Moreover, wherever else the Petition references medical reports or other assertions, there are no citations in support of the same. The Applicant did not meet his burden of proof on the issue of injury AOE/COE It is well established that a specific injury needs to cause disability or need for medical treatment.4 An Applicant has the burden of proof by a preponderance of the evidence to establish that an injury occurred.5 Moreover, it is well established that medical opinions must be based on substantial medical evidence.6 Part of substantiality includes the factual accuracy of what is presented therein, as well as the credible testimony of witnesses in support of said facts. The trial judge is afforded great latitude in credibility determination.7 Regarding the finding of no injury, the Petition takes issue finding that Dr. Haronian's opinions are not substantial. The Petition seeks to blame Applicant's prior attorney for the wrong

Proceedings for benefits must commence within one year of injury or last medical benefits; employer burden to provide claim form arises only if injury causes lost time or medical treatment beyond first aid.

The claim was barred by the statute of limitations as it was filed more than one year after injury and the employer was not required to provide a claim form due to the minor nature of the injury.

From the decision · page 7Proceedings for the collection of benefits must commence within one year of the date of injury or the last date on which medical benefits were furnished.10 The employee bears the initial burden of notifying the employer of an injury, unless such notice is unnecessary because the employer already knows of the injury or claimed injury from other sources. The employer then has the burden to inform the worker of possible compensation rights and provide a claim form.11 Failing to provide a claim form tolls the statute of limitations (SOL) during the time the employee actually remains unaware of his possible rights.12 Providing a claim form is not required when an applicant does not lose time from work and does not require medical treatment beyond first aid.13 Defendant has the burden of proof on this affirmative defense.14

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's inconsistent statements about the injury and treatment, and the lack of mention of the 2018 incident in medical records from other proceedings.

From the decision · page 5The undersigned did not find the Applicant credible. This determination was made based on the undersigned's ability to observe the witness making his statements while testifying, in connection with his demeanor while making them.9 In addition to observing the Applicant's demeanor when testifying, the undersigned noted inconsistencies in the medical reporting. Applicant tells the PQME that he sought treatment for the alleged injury, but that treatment was delayed because of COVID-19. (Joint Exhibit 1, Report of PQME Dr. Smith, 5/12/21 at p. 3). This is objectively controverted by the fact that the Applicant was actively treating with Dr. Wilker for his other ongoing legal injury claims, during COVID-19 concerns, and receiving work restrictions from his other ongoing legal proceedings from March 2020 to August 2020. (MOH & SOE, Page 5, Lines 8-10).

Medical recordsfavours Defendant prevailed

Applicant's ability to receive medical care during COVID-19, contradicting his claim of delayed treatment due to the pandemic.

From the decision · page 5The Petition makes mention of taking judicial notice that virtually all medical treatment was suspended and delayed due to COVID-19. (Petition, Page 3, Lines 20-21). It should be noted that no motion was made at trial to take judicial notice of this. The undersigned also notes that during COVID-19 many medical practitioners still conducted in person exams or offered telehealth exams. As noted above, this assertion that medical care was unavailable is again rebutted by the fact that the Applicant was able to avail himself to medical care to obtain work restrictions from March 2020 to August 2020.

activities of daily livingfavours Defendant prevailed

Surveillance video and Applicant's testimony corroborating activity levels, which did not support injury claims.

From the decision · page 6Lastly, the Petition makes mention of the Sub Rosa video shown during the proceedings. (Defendant's Exhibit C). The undersigned notes that Applicant's counsel objected to the video, but said objection was seemingly to the weight of the evidence and not the admissibility. The undersigned admitted the evidence over this objection, noting as much. (MOH & SOE, Page 3, Lines 15-19). Applicant's counsel did not challenge this ruling further. Applicant's counsel also apparently agreed in sending the video to the PQME. More importantly, the undersigned notes that the surveillance video played no part in the findings issued in the F&O. The undersigned does not mention the video, or the investigation report, in the Opinion on Decision. Additionally,

ADJ13504941 · December 30, 2022