ADJ15199903 · September 12, 2023

The PQME's reports, which reviewed the applicant's extensive preexisting back condition and found no increase in impairment or need for further treatment, constitute substantial evidence. The WCJ's credibility findings and the applicant's lack of candor support denying permanent disability and further medical treatment.

From the decision · page 4Of significance is that the PQME thereafter reviewed medical records dated between January 8, 2010 and March 15, 2022 and then issued a supplemental report dated July 7, 2022 (Exhibit J2). The doctor parses out several reports between August 17, 2016 and July 5, 2020 and describes these records as containing "several important points to be noted". (Id. at p. 1). The first report reviewed is dated August 17, 2016 from Dr. Paulo Murrieta who provides that the applicant has had "...back pain...ongoing for three years." Thus, the PQME, after reviewing the records and noting that the applicant has had back pain with radiculopathy for eight years before his injury at Medline, and now knowing that the applicant was not candid with him at the time of the initial evaluation, concluded that the applicant suffered only an exacerbation of his preexisting condition, had no increase in impairment (and actually had less impairment that prior to the injury at issue), and that there was no contribution towards his impairment from the injury at Medline. (Id. at p. 3). At no time did the applicant seek any further supplemental report or seek to schedule a cross-examination.

The applicant made no claim for temporary disability and the record supports no such benefit. The court allowed opportunity to litigate TD but the applicant did not pursue it, so the issue is denied.

From the decision · page 6applicant was not entitled to TD based upon the stipulation by the parties that the applicant made no claim for such benefit. Because Dr. Navani's one report failed to review any medical records, and because the applicant failed to provide any history whatsoever of his extensive back injuries, this court concluded it could not form the basis for any findings.

Applicant made no claim for temporary disability and did not pursue the issue at trial despite opportunities.

Favours Defendant prevailed

The court found no basis for temporary disability benefits and denied the claim accordingly.

From the decision · page 6applicant was not entitled to TD based upon the stipulation by the parties that the applicant made no claim for such benefit. Because Dr. Navani's one report failed to review any medical records, and because the applicant failed to provide any history whatsoever of his extensive back injuries, this court concluded it could not form the basis for any findings.

PQME Mark Hellner reviewed extensive medical records showing applicant's longstanding preexisting back condition and found no increase in impairment or contribution from the June 23, 2021 injury.

Favours Defendant prevailed

This medical opinion was the most reliable evidence and supported the denial of permanent disability and further medical treatment.

From the decision · page 4Of significance is that the PQME thereafter reviewed medical records dated between January 8, 2010 and March 15, 2022 and then issued a supplemental report dated July 7, 2022 (Exhibit J2). The doctor parses out several reports between August 17, 2016 and July 5, 2020 and describes these records as containing "several important points to be noted". (Id. at p. 1). The first report reviewed is dated August 17, 2016 from Dr. Paulo Murrieta who provides that the applicant has had "...back pain...ongoing for three years." Thus, the PQME, after reviewing the records and noting that the applicant has had back pain with radiculopathy for eight years before his injury at Medline, and now knowing that the applicant was not candid with him at the time of the initial evaluation, concluded that the applicant suffered only an exacerbation of his preexisting condition, had no increase in impairment (and actually had less impairment that prior to the injury at issue), and that there was no contribution towards his impairment from the injury at Medline. (Id. at p. 3). At no time did the applicant seek any further supplemental report or seek to schedule a cross-examination.

Applicant's demeanor at trial was combative and unprofessional, negatively impacting his credibility.

Favours Defendant prevailed

The WCJ gave great weight to credibility findings, which supported the denial of the applicant's claims.

From the decision · page 7In the case at bar, the applicant's demeanor at trial left much to be desired. He slouched excessively and appeared both upset and inconvenienced by the trial on direct examination. On cross- examination, he became combative with defense counsel and also to the court, going so far as to use profanity and log off Lifesize without notice. The court was nevertheless willing to allow the applicant the full opportunity to continue testifying in the afternoon and put the morning's difficulties in the past. In the afternoon, he was not combative, he was clearly annoyed by the defense attorney's questioning as evidenced by his eye- rolling, whispering under his breath, and continued unprofessional body language.

Applicant failed to provide accurate history of his extensive preexisting back injuries to physicians, undermining his claims and supporting the PQME's findings.

Favours Defendant prevailed

This lack of candor was central to the WCJ's decision to rely on the PQME's opinion and deny permanent disability and further treatment.

From the decision · page 7After reviewing all evidence, it is clear why. He was not forthcoming with the physicians, and the lack of candor was the centerpiece of the defendant's questioning. The applicant did not provide any physician a history that came even remotely close to his true history of chronic back pain, injuries, disability, range of motion and clinical evaluations, and treatment throughout the years. The records offered into evidence from Doctors Medical Center of Modesto (Exhibit A) reflect a longstanding history of back pain that is directly relevant to the issues of permanent disability and the need for future medical treatment.

Found causation to the injury at Medline, concluded applicant was not permanent and stationary, recommended treatment and diagnostic studies, but later concluded only an exacerbation of preexisting condition with no increase in impairment or contribution from the injury, and no need for further treatment.

PQME reviewed extensive medical records and found no increase in impairment or need for further treatment, which was supported by the WCJ's findings and credibility determinations.

From the decision · page 3The parties then utilized panel qualified medical evaluator (PQME) Mark Hellner who evaluated the applicant and issued his report dated February 10, 2022. (Exhibit J1). The PQME found causation to the injury at Medline, concluded that the applicant was not permanent and stationery and

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500]

Great weight is given to the WCJ's credibility determinations because the WCJ observes witness demeanor and weighs their statements accordingly.

The WCAB gave great weight to the WCJ's credibility findings based on witness demeanor at trial.

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)

Zemke v. WCAB (1968) 33 CCC 358; Place v. WCAB (1970) 35 CCC 525; Hegglin v. WCAB (1971) 36 CCC 93; Baptist v. WCAB (1982) 47 CCC 1244; Guerra v. WCAB (1985) 50 CCC 270; Escobedo v. Marshalls (2005) 70 CCC 604; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687

Medical evidence must be based on reasonable medical probability and a solid underlying basis to constitute substantial evidence.

The WCAB found the PQME's reports to be substantial evidence as they were based on a thorough review of medical records and reasonable medical probability.

From the decision · page 6Furthermore, medical evidence that is known to be erroneous or is based on inadequate medical history or examinations does not constitute substantial evidence. Zemke v. WCAB (1968) 33 CCC 358; Place v. WCAB (1970) 35 CCC 525; Hegglin v. WCAB (1971) 36 CCC 93; Baptist v. WCAB (1982) 47 CCC 1244; Guerra v. WCAB (1985) 50 CCC 270; Escobedo v. Marshalls (2005) 70 CCC 604; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687. The entire medical opinion must demonstrate that the doctor's opinion is based upon reasonable medical probability. McAllister (1968); Lamb (1974); Gay

Applicant's demeanor at trial was combative, unprofessional, and lacked credibility, including refusal to answer questions and use of profanity, which negatively affected his credibility.

From the decision · page 7In the case at bar, the applicant's demeanor at trial left much to be desired. He slouched excessively and appeared both upset and inconvenienced by the trial on direct examination. On cross- examination, he became combative with defense counsel and also to the court, going so far as to use profanity and log off Lifesize without notice. The court was nevertheless willing to allow the applicant the full opportunity to continue testifying in the afternoon and put the morning's difficulties in the past. In the afternoon, he was not combative, he was clearly annoyed by the defense attorney's questioning as evidenced by his eye- rolling, whispering under his breath, and continued unprofessional body language.

Applicant failed to provide accurate history of extensive preexisting back injuries and pain to physicians, which undermined his claims and supported the PQME's findings of no increased impairment.

From the decision · page 7After reviewing all evidence, it is clear why. He was not forthcoming with the physicians, and the lack of candor was the centerpiece of the defendant's questioning. The applicant did not provide any physician a history that came even remotely close to his true history of chronic back pain, injuries, disability, range of motion and clinical evaluations, and treatment throughout the years. The records offered into evidence from Doctors Medical Center of Modesto (Exhibit A) reflect a longstanding history of back pain that is directly relevant to the issues of permanent disability and the need for future medical treatment.