ADJ19073561 — California WCAB decision

ADJ19073561 · March 17, 2025

Petition for Reconsideration granted; Findings and Award rescinded and substituted to reflect that applicant's claim is not barred by section 3600(a)(7) and that applicant sustained injury AOE/COE to the cervical and lumbar spine; all other issues deferred.

Issues decided

Medical opinions weighed

Authorities named

District office

Riverside

What the panel ordered

Defendant sought reconsideration of the Findings and Award issued on December 13, 2024, which found applicant's claim was not barred by the initial aggressor defense and that applicant sustained injury AOE/COE. The Appeals Board granted reconsideration and rescinded and substituted the Findings and Award on March 17, 2025.

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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 prevailedcervical spine · lumbar spine

Defendant failed to prove applicant was the initial physical aggressor; evidence showed the other driver was at fault and the defense must be narrowly construed.

From the decision · page 4II. Turning now to the merits of the Petition, it is well established that the employee bears the burden of proof in establishing 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 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.) Section 3600(a)(7), however, bars an employee's claim for compensation where the injury arises out of an altercation in which the injured employee is the initial physical aggressor. Since it is defendant here who claims this defense, it is defendant's burden to establish that applicant was in fact the initial physical aggressor. (Lab. Code, § 5705 ["burden of proof rests upon the party or lien claimant holding the affirmative of the issue"].) The case of Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719 [37 Cal. Comp. Cases 124, 127-128] provides some guidance as to the applicability of the initial aggressor defense. In Mathews, the court held that section 3600(a)(7) bars recovery only when two conditions are present: first, the injury for which workmen's compensation benefits is sought must "arise out of an altercation," second, the injured employee must be the "initial physical aggressor" in that altercation. (Mathews, supra, at p.

The facts that decided it

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

Applicant was injured in a motor vehicle accident while driving her semi-truck for work on March 27, 2024.

Favours Applicant prevailed

This fact establishes the injury arose out of and in the course of employment, supporting compensability.

From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a truck driver on March 27, 2024, she sustained an industrial injury to her cervical, thoracic, and lumbar spine, left arm, bilateral wrists and hands, left leg, and psyche. Applicant later amended the claim to include the left upper extremity, left lower extremity, left hip, sleep, stress, anxiety, headaches, neuro, internal, sexual dysfunction, and worsening of asthma. The following day, on March 28, 2024, applicant was seen by Dr. Shaheen Zakaria at Concentra. In her Doctor's First Report of Occupational Injury Dr. Zakaria diagnosed applicant with cervical and lumbosacral strain and paraspinal muscle spasm as a result of the March 27, 2024 motor vehicle accident. (Applicant Exhibits 3 and 4.) As a part of the examination, Dr. Zakaria ordered x-rays of the cervical and lumbar spine. (Applicant Exhibits 5-6.) On May 13, 2024, applicant was seen by Dr. Jonathan Nissanoff for an "Initial Complex Orthopedic Evaluation." (Applicant Exhibit 1.) Dr. Nissanoff diagnosed applicant with cervical radiculitis of the left arm, lumbar radiculitis of the left leg, left shoulder impingement, left elbow cubital tunnel syndrome, bilateral wrist carpal tunnel, and left ankle and knee derangement.

Defendant failed to prove applicant was the initial physical aggressor in the altercation leading to injury.

Favours Applicant prevailed

Without proof of initial aggression, the initial aggressor defense under section 3600(a)(7) does not bar compensation.

From the decision · page 4127.) With respect to the first prong, an injury arises out of an altercation if it results from "an exchange between two or more persons characterized by an atmosphere of animosity and a willingness to inflict bodily harm." (Ibid.) With respect to the second prong, the court held that an initial physical aggressor is one who first engages in physical conduct which a reasonable man would perceive to be a "`real, present and apparent threat of bodily harm....'" (Mathews, supra, at p. 128, citing Briglia v. Industrial Accident Commission (1962) 27 Cal.Comp.Cases 217, 218.) In the instant case, defendant produced insufficient evidence to meet their burden. The other driver involved in the accident did not testify and the record does not include evidence of the other driver's state of mind. Further, we note that based upon the other driver's actions, as highlighted by the WCJ, the other driver appeared to be "securely traveling in the far left lane" before he "accelerated next to the Applicant before swerving into her truck and continuing to push her off the road and onto the shoulder." (Report, p. 6.) Based upon the evidence in the record, there

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

Diagnosed cervical and lumbosacral strain and paraspinal muscle spasm causally related to the March 27, 2024 motor vehicle accident.

From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a truck driver on March 27, 2024, she sustained an industrial injury to her cervical, thoracic, and lumbar spine, left arm, bilateral wrists and hands, left leg, and psyche. Applicant later amended the claim to include the left upper extremity, left lower extremity, left hip, sleep, stress, anxiety, headaches, neuro, internal, sexual dysfunction, and worsening of asthma. The following day, on March 28, 2024, applicant was seen by Dr. Shaheen Zakaria at Concentra. In her Doctor's First Report of Occupational Injury Dr. Zakaria diagnosed applicant with cervical and lumbosacral strain and paraspinal muscle spasm as a result of the March 27, 2024 motor vehicle accident. (Applicant Exhibits 3 and 4.) As a part of the examination, Dr. Zakaria ordered x-rays of the cervical and lumbar spine. (Applicant Exhibits 5-6.) On May 13, 2024, applicant was seen by Dr. Jonathan Nissanoff for an "Initial Complex Orthopedic Evaluation." (Applicant Exhibit 1.) Dr. Nissanoff diagnosed applicant with cervical radiculitis of the left arm, lumbar radiculitis of the left leg, left shoulder impingement, left elbow cubital tunnel syndrome, bilateral wrist carpal tunnel, and left ankle and knee derangement.

QMERelied upon · orthopedics

Diagnosed cervical radiculitis, lumbar radiculitis, left shoulder impingement, cubital tunnel syndrome, carpal tunnel, and ankle/knee derangement; opined symptoms causally related to industrial injury of March 27, 2024.

From the decision · page 2FACTS Applicant claimed that, while employed by defendant as a truck driver on March 27, 2024, she sustained an industrial injury to her cervical, thoracic, and lumbar spine, left arm, bilateral wrists and hands, left leg, and psyche. Applicant later amended the claim to include the left upper extremity, left lower extremity, left hip, sleep, stress, anxiety, headaches, neuro, internal, sexual dysfunction, and worsening of asthma. The following day, on March 28, 2024, applicant was seen by Dr. Shaheen Zakaria at Concentra. In her Doctor's First Report of Occupational Injury Dr. Zakaria diagnosed applicant with cervical and lumbosacral strain and paraspinal muscle spasm as a result of the March 27, 2024 motor vehicle accident. (Applicant Exhibits 3 and 4.) As a part of the examination, Dr. Zakaria ordered x-rays of the cervical and lumbar spine. (Applicant Exhibits 5-6.) On May 13, 2024, applicant was seen by Dr. Jonathan Nissanoff for an "Initial Complex Orthopedic Evaluation." (Applicant Exhibit 1.) Dr. Nissanoff diagnosed applicant with cervical radiculitis of the left arm, lumbar radiculitis of the left leg, left shoulder impingement, left elbow cubital tunnel syndrome, bilateral wrist carpal tunnel, and left ankle and knee derangement.

ADJ19073561 · March 17, 2025

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