ADJ10045593 · September 28, 2021

The WCAB found the WCJ's credibility findings insufficiently material and noted the need for further development of the record, including clarifications on medical evidence and apportionment analysis, thus remanding the case for further proceedings.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge (WCJ) Findings and Order of July 6, 2021, wherein it was found that applicant did not sustain industrial injury to his trunk, hand, back, leg, upper extremity, lower extremity and psyche while employed as an automobile mechanic during a cumulative period ending on July 10, 2016.1

The WCJ's credibility findings were not sufficiently material to negate industrial injury, and the 2016 date was a clerical error; applicant worked until July 2015 and had medical visits for back pain from 2010 to 2015.

Favours Applicant prevailed

This undermined the WCJ's basis for denying industrial injury and supported further development of the record.

From the decision · page 3The WCJ found that applicant did not sustain industrial injury based on a lack of credibility. However, many of the facts that the WCJ focuses on frankly do not appear to be material to the issue of whether applicant sustained industrial injury. The WCJ states that applicant claimed injury until July 2016 at trial, but all of the evidence in this matter, including the history given to both physicians was that he worked until only July of 2015. It is evident that the 2016 date was a clerical error, and the fact that applicant was not employed until 2016 does not negate the possibility he was injured in 2015 or before. The WCJ then discusses whether applicant was fired or quit, which is also not relevant to the issue of whether he sustained industrial injury. Then, the WCJ discusses whether applicant worked for another employer soon after leaving Brake Land, but applicant never denied that he was employed to Dr. Lee (who does not discuss applicant's employment history after July of 2015 in his initial report and then writes that applicant "has been working regular duty as a tow truck driver" [December 26, 2019 report at p. 3]) and Dr. Ashok's report dated July 22, 2015 was only days after he left Brake Land.

Opined applicant sustained industrial injury; condition not yet permanent and stationary as of July 22, 2015.

Based on applicant's history and clinical evaluation shortly after leaving employment.

From the decision · page 1Applicant was seen by Dr. Ashok on July 22, 2015. Dr. Ashok reports that applicant gave him the following history regarding the mechanism of injury:

Opined applicant sustained industrial injury including lumbar strain with 2% whole person impairment; reviewed medical records including prior reports of occupational injury.

Provided detailed medical evaluation and impairment rating; noted discrepancies in medical record evidence requiring clarification.

From the decision · page 3Dr. Lee was told that applicant had "been working as a mechanic for Brake Land LLC since 2008. Patient's main duties involve manual labor as a mechanic that handles general maintenance of a vehicle as well as body work. Patient is required to lift heavy objects, use power tools as well as repetitive bending and stooping." (October 24, 2016 report at p. 4.)

Lab. Code, 3208.1, subd. (b)

Labor Code section 3208.1, subdivision (b) regarding cumulative injury and medical evaluation.

Dr. Lee or other reporting physician should discuss whether cumulative injury led to need for medical treatment and apportionment analysis.

From the decision · page 4These matters must be clarified in further proceedings. First, the WCJ should identify which specific testimony material to the issue of industrial injury that he found not credible. The reporting doctors should be informed of the WCJ's findings and base their conclusions on a history that adopts the WCJ's credibility determinations. If Dr. Lee issues supplemental reporting or testimony, he should discuss whether applicant sustained a cumulative injury. (Lab. Code, § 3208.1, subd. (b).) Dr. Lee, or any other reporting physician should discuss whether any cumulative injury led to the need for medical treatment as referenced in Dr. Lee's review of medical records or if these visits were caused by nonindustrial conditions. Additionally, to the extent that industrial injury is found on any modified history, there should be a full apportionment analysis, including the role of applicant's (apparently non-industrial) 2012 automobile accident. We note that Dr.

Applicant's employment history and medical reports from 2010 to 2015 documenting back pain and occupational injury.

From the decision · page 4Although the WCJ apparently disbelieved applicant had sustained industrial injury because "no injury was reported to the employer until after leaving work," Dr. Lee's review of medical records evidences multiple medical visits for back pain from 2010 until July 2015. (October 24, 2016 report at pp. 12-14.) Additionally, the WCJ apparently found no injury because the "injuries alleged are... exaggerated" (Report at p. 3); however, it is unclear what the WCJ means since applicant complained to Dr. Lee of only "minimal to mild low back pain that radiates to the left ankle area exacerbated with prolonged standing, walking or sitting" (December 26, 2019 report at p. 4), applicant told Dr. Lee that "he no longer would like to pursue active treatment for the lumbar spine" (December 26, 2019 report at p. 5), and Dr. Lee assigned only 2% WPI to applicant's impairment.