What the panel ordered
The Workers' Compensation Appeals Board affirmed the Finding & Award issued by the WCJ on August 22, 2021.
Defendant sought reconsideration of the Joint Findings of Fact & Award issued by the WCJ on August 22, 2021, which found injury arising out of and in the course of employment to applicant's head on March 25, 2018.
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.
Applicant struck her head at work and defendant accepted liability for the head injury, thus applicant met burden to show injury AOE/COE. Defendant's challenge to injury AOE/COE was rejected due to lack of specific evidence against applicant's credibility.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on August 22, 2021. By the F&A, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) to her head while employed by the defendant on March 25, 2018 as a janitor. She further found that applicant's primary treating physician is Tariq Mirza, M.D., and that the injury caused the need for further medical treatment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant struck her head at work on March 25, 2018, causing injury.
Favours Applicant prevailed
This fact established injury arising out of and in the course of employment (AOE/COE).
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on August 22, 2021. By the F&A, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) to her head while employed by the defendant on March 25, 2018 as a janitor. She further found that applicant's primary treating physician is Tariq Mirza, M.D., and that the injury caused the need for further medical treatment.
Defendant accepted liability for applicant's head injury on December 6, 2018, and again on November 9, 2020.
Favours Applicant prevailed
Acceptance of liability negated the presumption rebuttal and supported injury compensability.
From the decision · page 3Here, in her Opinion, the WCJ concluded that applicant had established that the presumption applied to applicant's injury case. However, defendant did not deny applicant's claim; it accepted liability for injury to applicant's head on December 6, 2018. Accordingly, the presumption does not apply. Said another way, if there is a subsequent denial of injury after an acceptance within the 90-day statutory period, and an employer challenges whether an injury occurred, the issue becomes whether an applicant sustained injury AOE/COE.
Defendant challenged injury based on applicant's credibility but failed to specify non-credible statements.
Favours Applicant prevailed
Lack of specific evidence undermined defendant's challenge to injury compensability.
From the decision · page 4At trial, defendant argued that the specific "rebuttal" information discovered after the 90 day "investigatory period" was essentially that applicant was not credible. In fact, the caption at defendant's trial brief page 4:22-23 reads in pertinent part, "Issues surrounding causation and AOE/COE relate to [applicant's] credibility." (Opinion, p. 4.)
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.
Primary treating physician for applicant's injury.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings of Fact & Award (F&A) issued by the workers' compensation administrative law judge (WCJ) on August 22, 2021. By the F&A, the WCJ found in relevant part that applicant sustained injury arising out of and in the course of employment (AOE/COE) to her head while employed by the defendant on March 25, 2018 as a janitor. She further found that applicant's primary treating physician is Tariq Mirza, M.D., and that the injury caused the need for further medical treatment.
Deferred determination of AOE/COE to trier of fact.
Defendant relied on Dr. Anderson's deferral of AOE/COE to trier of fact to challenge injury.
From the decision · page 1Defendant contends that the WCJ improperly determined that defendant had not rebutted the presumption of injury for applicant's claim under Labor Code section 5402(b)(1).
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5402
Presumption of compensability under Labor Code section 5402(b)(1)
The presumption applies if liability is not rejected within 90 days after claim filing; rebuttable only by evidence discovered after 90 days.
From the decision · page 3Section 5402(b)(1) states that: If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.
South Coast Framing v. WCAB (Clark) (2015) 80 Cal Comp Cases 489
Burden of proof for industrial injury is preponderance of evidence, not scientific certainty.
Employment must be a contributing cause without which injury would not have occurred; burden met by applicant striking head at work.
From the decision · page 4*** In the case of South Coast Framing v. WCAB (Clark),) (2015) 80 Cal Comp Cases 489, the California Supreme Court stated, "All that is required [to prove industrial injury] is that the employment be one of the contributing causes without which the injury would not have occurred." Emphasis added. As discussed above, applicant's employment as a janitor is not in dispute. Nor does it appear that anyone, for the past 3 years has disputed applicant's mechanism of industrial injury to her head. She slipped while cleaning the bathroom, hit her head on the stall door, fell backwards and then hit her head for a second time, this time on the toilet, after which she lost consciousness. As explained above, all parties, including defendant, stipulate that this industrial injury to applicant's head occurred at the workplace. Defendants would now like to avoid liability for this claim by casting doubt on applicant's credibility, but defendant has failed to list with specificity what statements have been made by applicant that are not credible. (Opinion, p. 5.)
What proof carried it
The evidence the panel weighed, by kind.
Defendant argued applicant was not credible but failed to specify which statements were not credible.
From the decision · page 4At trial, defendant argued that the specific "rebuttal" information discovered after the 90 day "investigatory period" was essentially that applicant was not credible. In fact, the caption at defendant's trial brief page 4:22-23 reads in pertinent part, "Issues surrounding causation and AOE/COE relate to [applicant's] credibility." (Opinion, p. 4.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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