What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defendant and denied by the Appeals Board after review of the WCJ report.
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.
The Appeals Board found substantial medical evidence supporting injury AOE/COE based on credible applicant testimony, medical expert opinion of Dr. Bronshvag, and the preponderance of evidence standard favoring the applicant.
From the decision · page 3Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) For the reasons stated by the WCJ in the Report, we find that opinion of panel qualified medical evaluator (PQME) Michael Bronshvag, M.D., to be substantial medical evidence which supports the finding of injury arising out of and occurring in the course of employment (AOE/COE).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was exposed to carbon dioxide for 22-27 minutes in the workplace, which was a reasonably probable contributory cause of his pontine hemorrhage.
Favours Applicant prevailed
This exposure was found by the Appeals Board to be a substantial medical cause of injury AOE/COE, supported by credible testimony and expert opinion.
From the decision · page 3Moreover, the applicant credibly testified that while cleaning an IQF machine, he started to feel dizzy, he felt tightness in his upper body, and his joints were stiff like muscle cramps (Minutes of Hearing and Summary of Evidence (MOH/SOE), 6/18/24, at p.4:22-25, 32-33); he heard a hissing noise (MOH/SOE at p. 6:22-24); and he realized that a CO2 valve on the IQF machine was open. (MOH/SOE at p. 4:13-14, 16-17, 27-28, 32-33). Applicant's credible testimony was uncontroverted. We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (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 determination. (Id.)
Applicant's credible testimony about hearing a hissing sound and valve being open was unrebutted and given great weight by the WCJ and Appeals Board.
Favours Applicant prevailed
Credibility of applicant's testimony supported the finding of injury AOE/COE.
From the decision · page 3Moreover, the applicant credibly testified that while cleaning an IQF machine, he started to feel dizzy, he felt tightness in his upper body, and his joints were stiff like muscle cramps (Minutes of Hearing and Summary of Evidence (MOH/SOE), 6/18/24, at p.4:22-25, 32-33); he heard a hissing noise (MOH/SOE at p. 6:22-24); and he realized that a CO2 valve on the IQF machine was open. (MOH/SOE at p. 4:13-14, 16-17, 27-28, 32-33). Applicant's credible testimony was uncontroverted. We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (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 determination. (Id.)
Dr. Bronshvag's medical opinion was found to be substantial evidence supporting injury causation, outweighing contrary opinions.
Favours Applicant prevailed
The Appeals Board relied on Dr. Bronshvag's opinion to find injury AOE/COE by a preponderance of the evidence.
From the decision · page 3Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) For the reasons stated by the WCJ in the Report, we find that opinion of panel qualified medical evaluator (PQME) Michael Bronshvag, M.D., to be substantial medical evidence which supports the finding of injury arising out of and occurring in the course of employment (AOE/COE).
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.
Dr. Wang opined that the pontine hemorrhage was most likely due to hypertensive etiology and small vessel disease, not considering carbon dioxide exposure as a contributory factor.
The Appeals Board found Dr. Wang's opinion less persuasive because it did not consider carbon dioxide exposure as a contributory cause and lacked reference to supporting reports.
From the decision · page 7Defendant's Exhibit A is a report of Zi C. Wang, M.D., dated 02/09/2023. In his report,
From the decision · page 8Exhibit D is a report of Dikran Bairamian, M.D., dated 09/29/2022 from the same set of records
Dr. Bronshvag opined that it was reasonably probable that the applicant's pontine hemorrhage was at least partially caused by carbon dioxide exposure at work, based on medical records, exposure duration, and reasonable medical probability.
The Appeals Board found Dr. Bronshvag's opinion to be substantial medical evidence supporting injury AOE/COE, giving it more weight than contrary opinions.
From the decision · page 3Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416§ 17, 419 [33 Cal.Comp.Cases 660].) A physician's report must also be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc), 70 Cal.Comp.Cases 1506 (writ den.).) For the reasons stated by the WCJ in the Report, we find that opinion of panel qualified medical evaluator (PQME) Michael Bronshvag, M.D., to be substantial medical evidence which supports the finding of injury arising out of and occurring in the course of employment (AOE/COE).
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3202.5
Preponderance of the evidence standard for proving injury AOE/COE.
Applicant must show work was a contributing cause of injury, not zero contribution.
From the decision · page 15Applicant bears the burden of proving injury 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; Lab. Code, § 3600(a); 3202.5.) It is sufficient to show that work was a contributing cause of the injury. (See Clark, supra, 61 Cal.4th at p. 298.) Applicant need only show that industrial causation was "not zero" to show sufficient contribution from work exposure for the claim to be compensable. (Clark, supra, 61 Cal.4th at p. 303.) The burden of proof "manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701.) It has also long been established that "all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (Guerra v. Workers' Comp. Appeals Bd. (2016) 246 Cal.App.4th 1301, 1310 see also Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 at p. 317; Lab. Code, § 3202.) Under LC 3202.5, preponderance of the evidence means that evidence, when weighted with that opposed to it, has more convincing force and the greater probability of truth. (Lab. Code, § 3202.5).
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922
Substantial medical evidence must be based on reasonable medical probability and not speculative.
Medical opinion must be framed in terms of reasonable medical probability and supported by reasoning.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible and unrebutted testimony about hearing a hissing sound and exposure to carbon dioxide while cleaning the IQF machine.
From the decision · page 3Moreover, the applicant credibly testified that while cleaning an IQF machine, he started to feel dizzy, he felt tightness in his upper body, and his joints were stiff like muscle cramps (Minutes of Hearing and Summary of Evidence (MOH/SOE), 6/18/24, at p.4:22-25, 32-33); he heard a hissing noise (MOH/SOE at p. 6:22-24); and he realized that a CO2 valve on the IQF machine was open. (MOH/SOE at p. 4:13-14, 16-17, 27-28, 32-33). Applicant's credible testimony was uncontroverted. We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (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 determination. (Id.)
OSHA report and hospital records consistent with applicant's account of valve being open and exposure to carbon dioxide.
From the decision · page 16Applicant very well could have been exposed to high levels of carbon dioxide for the 22- 27 minutes he was enclosed in the room. He testified that he heard hissing, and that he rushed to close a valve that should not have been open. While there is evidence in the record that both the wall mount and the handheld devices were not malfunctioning, applicant testified that devices had malfunctioned previously in that the alarm did not go on when the levels were high enough for it to sound. Additionally, the wall-mounted device was 20-30 feet away from where applicant was working. I found applicant's unrebutted testimony to be credible. Furthermore, the OSHA report states applicant stated Francisco left the valve on. The hospital reports state applicant stated applicant forgot to turn off the valve. Regardless of why, applicant's accounts are consistent that the valve was open at the time of the alleged exposure.
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