ADJ11187899 · May 21, 2021

The record lacked substantial medical evidence addressing whether the February 28, 2017 incident constituted an industrial injury. The QME's opinions were not substantial evidence on injury AOE/COE, and the applicant's testimony was inconsistent with medical reports. The Appeals Board exercised its discretion to develop the record further by ordering a new evaluation by an agreed medical examiner or WCJ-appointed physician.

From the decision · page 4Review of the record indicates that defendant does not dispute applicant's claim that while at work on February 28, 2017, her right elbow was hit by a freezer door that was pushed open by a co-worker. It appears the actual issue is whether the February 28, 2017 incident constitutes an industrial injury. A specific injury is an incident that causes disability or need for medical treatment. (Lab. Code, § 3208.1(a).)

The record lacked substantial medical evidence addressing whether the February 28, 2017 incident constituted an industrial injury.

Favours Defendant prevailed

Without substantial medical evidence, the WCJ's original finding of injury AOE/COE could not be upheld.

From the decision · page 5For these reasons, Dr. Ciepiela's opinions are not substantial evidence regarding the issue of injury AOE/COE.

Applicant's trial testimony was inconsistent with the Doctor's First Report of Injury regarding symptom timing and severity.

Favours Defendant prevailed

This inconsistency undermined the credibility of the applicant's claim and the medical evidence supporting injury AOE/COE.

From the decision · page 4At trial, applicant testified that she reported her right elbow injury to her manager on the day it occurred, and that at that time she had a lot of pain. (MOH/SOE, p. 6.) Applicant's trial testimony is inconsistent with the statements attributed to applicant in the Doctor's First Report of Injury and there is no explanation in the record regarding those inconsistencies.

QME Dr. Ciepiela declined to re-examine applicant and recommended a new evaluation by a different doctor.

Favours neutral

This indicated the need for further medical evaluation to develop the record adequately.

From the decision · page 6Normally, when the medical record requires further development, the record should first be supplemented by physicians who have already reported in the case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) However, as noted above, Dr. Ciepiela specifically stated that he did not want to re-examine applicant and if she needed to be re-evaluated, it should be done by a different doctor "whose opinion would not be tainted." (Joint Exh. 106, p. 13.) Under the circumstances of this matter, it is appropriate that the parties have applicant evaluated by an agreed medical examiner or in the alternative, that the WCJ appoint a regular physician. (Lab. Code § 5701.)

Diagnosed status post right elbow release, possible right shoulder issues including calcific tendinitis and loose bodies, and extreme symptom magnification. Did not find substantial evidence of injury AOE/COE and declined further evaluation due to credibility concerns.

Dr. Ciepiela's opinions were found not to be substantial evidence regarding injury AOE/COE due to lack of discussion on aggravation and causation of shoulder conditions and credibility issues with the applicant.

From the decision · page 1Defendant contends that the reports and deposition testimony of orthopedic qualified medical examiner (QME) Michael D. Ciepiela, M.D., are substantial evidence that applicant did not sustain injury AOE/COE.

Reports from treating physician Tariq Mirza were reviewed but did not constitute substantial evidence regarding injury AOE/COE.

The record contained no substantial medical evidence from Dr. Mirza regarding injury AOE/COE.

From the decision · page 5As discussed above, applicant's trial testimony about her symptoms, including pain in her elbow and shoulder, was inconsistent with the information contained in the Doctor's First Report of Injury. (Joint Exh 108.) Our review of the trial record, including the reports from treating physician Tariq Mirza, M.D., (App. Exhs. 1 § 8), indicates that the record contains no medical evidence that constitutes substantial evidence regarding injury AOE/COE. It has long been recognized that evidence from a lay witness on an issue requiring expert opinion is not substantial evidence, and medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455 [18 Cal.Comp.Cases 103]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) Medical proof is

Lab. Code, 3208.1(a)

A specific injury is an incident that causes disability or need for medical treatment.

The issue was whether the February 28, 2017 incident constituted an industrial injury under this standard.

From the decision · page 4Review of the record indicates that defendant does not dispute applicant's claim that while at work on February 28, 2017, her right elbow was hit by a freezer door that was pushed open by a co-worker. It appears the actual issue is whether the February 28, 2017 incident constitutes an industrial injury. A specific injury is an incident that causes disability or need for medical treatment. (Lab. Code, § 3208.1(a).)

Lab. Code, 5401(a)

A minor industrial injury requires only first aid treatment.

The QME did not address whether the incident was a minor industrial injury under this standard.

From the decision · page 5The aggravation of a pre-existing condition is an industrial injury. (Argonaut Ins. Co. v. Industrial Acc. Comm. (Harries) (1964) 231 Cal.App.2d 211 [29 Cal.Comp.Cases 279].) Here, Dr. Ciepiela did not discuss whether the February 28, 2017 incident aggravated applicant's pre- existing degenerative shoulder condition. Also, he did not discuss whether the February 28, 2017 incident was a causative factor as to the "loose bodies" in applicant's shoulder. Further, although Dr. Ciepiela indicated he believed the treatment applicant received did not "correspond to any industrial causation" he did not address the issue of whether the incident was or was not a "minor industrial injury" that would only require first aid treatment. (Lab. Code, § 5401(a).)

Lab. Code 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to develop the record when substantial evidence is lacking on a threshold issue.

The Appeals Board exercised this authority to order further development of the medical record regarding injury AOE/COE.

From the decision · page 6Again, defendant does not argue that the February 28, 2017 incident did not occur, the issue is whether that incident constitutes an injury AOE/COE. As explained herein, the trial record does not contain substantial evidence addressing that issue. The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Clearly, injury AOE/COE is a threshold issue (see Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122]), and therefore it is necessary that the parties further develop the record.

Applicant's trial testimony was inconsistent with the Doctor's First Report of Injury regarding the timing and severity of symptoms.

From the decision · page 4At trial, applicant testified that she reported her right elbow injury to her manager on the day it occurred, and that at that time she had a lot of pain. (MOH/SOE, p. 6.) Applicant's trial testimony is inconsistent with the statements attributed to applicant in the Doctor's First Report of Injury and there is no explanation in the record regarding those inconsistencies.