ADJ16280220 — California WCAB decision

ADJ16280220 · February 12, 2024

The Board denied the Petition for Reconsideration, affirming the WCJ's Findings and Order that the applicant did not sustain a specific injury arising out of and in the course of employment on July 7, 2021, and ordered that the applicant take nothing by way of her claim.

Issues decided

Medical opinions weighed

Authorities named

District office

Van Nuys

What the panel ordered

Applicant filed a timely Petition for Reconsideration of the WCJ's Findings and Order issued on November 21, 2023, which denied the claim for injury arising out of and in the course of employment on July 7, 2021. The WCJ prepared a Report and Recommendation to deny reconsideration, which the Board adopted.

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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 prevailedback · hips · legs · foot · wrist · plantar fasciitis · stress · anxiety · psyche · insomnia

The WCJ found the applicant did not provide sufficient credible evidence to prove a specific injury on July 7, 2021. The medical reports from Dr. Tsaltskan and Dr. Rodriguez did not reference the injury date or provide substantial evidence. The WCJ's credibility determinations were supported by substantial evidence, including contradictory testimony from the defense witness.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order and Opinion on Decision (F&O) issued by the workers' compensation administrative law judge (WCJ) on November 21, 2023. By the F&O, the WCJ found that applicant did not sustain a specific injury arising out of and in the course of employment (AOE/COE) on July 7, 2021 to her back, hips, legs, foot, wrist plantar fasciitis, stress, anxiety, psyche, and insomnia.1 As a result, the WCJ ordered that applicant take nothing by way of her claim.

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.

otherRejected

Medical notes from Dr. Tsaltskan did not mention the July 7, 2021 injury date or provide substantial evidence of injury on that date. The notes were incomplete and contained handwritten notations not typed in the original note.

The WCJ found the medical notes from Dr. Tsaltskan incomplete and not supportive of a specific injury on July 7, 2021.

From the decision · page 6The next contention raised in the Petition is that applicant heard from Dr. Vladislav Tsaltskan "that due to pulling the pallet jack from behind and pressing on the balls of her feet she sustain an injury to her fascia." The statement made by the applicant that she heard this from Dr. Tsaltskan is not supported by any medical report admitted into evidence. In fact, the one page note from Dr. Tsaltskan, Exhibit HH, dated September 1, 2021, never mentions any date of injury, let alone an injury date of July 7, 2021. This is true despite that fact that the applicant this note was issued less than 2 months after the July 7, 2021 incident occurred. Also, as noted in the Opinion on Decision, this document is not a medical report and it contains handwritten notations changing dates and adding content which was not typed into the note. This note does not confirm the applicant' statements about what the doctor told her regarding her claimed injury.

otherRejected

Medical notes from Dr. Rodriguez were considered incomplete and did not constitute substantial evidence of a specific injury on July 7, 2021.

The WCJ found the medical notes from Dr. Rodriguez incomplete and not supportive of a specific injury on July 7, 2021.

From the decision · page 2The burden of proving injury AOE/COE rests with the employee. (Clark, supra, 61 Cal.4th at pp. 297-298, 302; Lab. Code, § 5705, 3600(a).) The employee's burden must be met by a preponderance of the evidence. (Lab. Code, § 3202.5.) Here, the WCJ considered the evidence, including applicant's testimony and the medical records, consisting of notes issued by two doctors, Dr. Vladislav Tsaltskan, M.D., and Dr. Sean Rodriguez, M.D. (Joint Exhs. GG, HH.) Upon review, the WCJ found that applicant did not testify credibly regarding her alleged injury on July 7, 2021, and that the medical reports were incomplete and did not constitute substantial evidence of a specific injury on that date. (F&O, p. 6.)

The rules the panel named

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

Labor Code 3202.5

The employee bears the burden of proving injury arising out of and in the course of employment by a preponderance of the evidence.

The WCJ applied this standard to require the applicant to prove injury AOE/COE on July 7, 2021 by a preponderance of the evidence.

From the decision · page 11 We note that the parties framed the issue for adjudication as "whether or not an incident occurred on July 7, 2021." (Minutes of Hearing/Summary of Evidence (MOH/SOE), September 11, 2023, p. 2, emphasis added.) However, as the WCJ properly stated in the F&O, the triable issue was whether applicant sustained an injury arising out of and occurring in the course of employment (AOE/COE) on July 7, 2021. (F&O, p. 2; see South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a), 5705 [the employee bears the burden of proving injury AOE/COE by a preponderance of the evidence].)

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312

The WCJ's credibility determinations are entitled to great weight because of the opportunity to observe witness demeanor.

The Board gave great weight to the WCJ's credibility findings in rejecting the applicant's testimony.

From the decision · page 2The courts have clearly explained that "any award, order or decision of the board must be supported by substantial evidence in the light of the entire record...." (Garza v. Workmen's Comp. Appeals Bd. (Garza) (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "[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, conjecture, or guess." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620 (Appeals Board en banc), citing Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798 [33 Cal.Comp.Cases 358].) With respect to witness testimony, a WCJ's credibility determinations are "entitled to great weight because of the [WCJ's] opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand...." (Garza,

ADJ16280220 · February 12, 2024

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