ADJ11522221 — California WCAB decision

What the panel ordered

The WCJ's March 10, 2021 Findings of Fact and Order is rescinded and the matter is returned to the trial level for further proceedings and record development.

Applicant sought reconsideration of the WCJ's Findings of Fact and Order issued on March 10, 2021, which barred the claim based on intoxication defense; the WCAB granted reconsideration to further study the factual and legal issues and now issues a Decision After Reconsideration rescinding the WCJ's order and returning the matter to trial level for further development of the record.

Read the official decision →

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/COERemandedbrain · head · neck · back · shoulders · knee · psyche

Defendant failed to prove by a preponderance of the evidence that applicant was intoxicated at the time of injury or that intoxication was a proximate cause of the injury; expert medical testimony was lacking and toxicology evidence was not substantial medical evidence.

From the decision · page 7In this case, as discussed below, the evidence does not establish that (1) applicant was intoxicated at the time of his injury or (2) that intoxication was a proximate or substantial cause of his injury. As noted by the WCJ, the toxicology reporting in this matter is not substantial medical evidence. We agree with the WCJ's analysis on this point. Accordingly, defendant failed its burden of proof to establish intoxication.

The facts that decided it

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

Applicant tested positive for cocaine in urine sample taken at hospital after accident, but this alone does not establish intoxication at time of injury.

Favours Applicant prevailed

Expert medical testimony and toxicology opinion required to establish intoxication and proximate cause, which defendant failed to provide.

From the decision · page 7In this case, as discussed below, the evidence does not establish that (1) applicant was intoxicated at the time of his injury or (2) that intoxication was a proximate or substantial cause of his injury. As noted by the WCJ, the toxicology reporting in this matter is not substantial medical evidence. We agree with the WCJ's analysis on this point. Accordingly, defendant failed its burden of proof to establish intoxication.

Applicant refused voluntary blood test after accident; refusal does not prove intoxication or proximate cause of accident.

Favours Applicant prevailed

Refusal to test does not establish intoxication; police did not have reasonable suspicion to obtain warrant.

From the decision · page 7The WCJ relies upon an `adverse inference' to support the finding that applicant was intoxicated and that such intoxication proximately caused the injury. No such inferences were established in this case. The first inference comes from applicant's refusal to submit to voluntary blood testing after the accident. This action does not establish intoxication; if anything, it indicates that the police officer did not have reasonable suspicion that applicant was intoxicated as the police

Applicant's assertion of Fifth Amendment right not to answer questions about prior drug use cannot be used to draw adverse inference.

Favours Applicant prevailed

No adverse inference may be drawn from exercise of Fifth Amendment right in California; unrebutted evidence did not meet defendant's burden.

From the decision · page 8Next, in deposition, applicant asserted his Fifth Amendment right not to answer questions about prior criminal drug use. In the Opinion on Decision, the WCJ took an adverse inference from applicant's assertion of his Fifth Amendment right. No adverse inference may be drawn from the exercise of one's Fifth Amendment right in California. (U.S. Const., 5th Amend.; Cal. Evid., § 913.) Although the WCJ may not draw inferences upon the assertion of privilege itself, the WCJ may draw conclusions from any evidence left unrebutted. (Cal. Evid., § 413.) However, again, the unrebutted evidence in this case did not establish defendant's burden of proof.

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.

QMERelied upon · neurology

Applicant did not recall the accident and was found confused with blood-shot eyes and covered with fuel; not considered MMI at time of report.

From the decision · page 5Based on the positive finding, defendant denied the claim and the applicant was scheduled to see a Panel Qualified Medical Examiner. The applicant was evaluated by PQME, Dr. Pedram Navab, neurologist, who issued a report dated 6-22-18 (App Ex 2). Dr. Navab report reflects the applicant offered that another driver was involved in the accident although fled the scene (pg 3). Dr. Navab further notes that the applicant does not recall the accident and his last memory is exiting the freeway nor does he recall how long he was unconscious. At Loma Linda Medical Center the applicant underwent an evacuation of a hematoma in his skull and remained in the hospital for approximately three days. The applicant was not considered MMI at the time of the report. Dr. Navab noted in his deposition, that the applicant did not recall the actual incident (Def Ex B, pg 7, ln 9). In his record review, Dr. Navab noted that records reflect the applicant was found sitting upright, he was confused, had blood-shot eyes and covered with fuel. The applicant does not remember the incident (App Ex 2, pg 8).

QMERejected · toxicology

Report lacked detailed analysis of urine test results and impairment; focused on legal issues and applicant's self-reporting; deemed not substantial medical evidence.

Report lacked probative value and was rejected as not substantial medical evidence.

From the decision · page 6Parties also utilized Dr. Ghan Lohiya, toxicology PQME who issued a report dated 6-12-20 (Def Ex D). There are some conflicting references in his report, such as applicant worked 12-14 hour days 7 days a week (Def Ex D, pg 8), then on the next page the applicant worked from 3:30 to 1, five days a week (pg 9). Dr. Lohiya notes "upon a cursory review, the evidence favoring cocaine abuse by the applicant seems quite convincing" (pg 27) and notes the cutoff for a positive cocaine radioimmunoassay test is 300 ng/ml while applicant's urine tested positive at 1655 ng/ml, which is five times the cutoff level. However, most of Dr. Lohiya report was review of records and legal research. Dr. Lohiya's report is lacking a detailed analysis of the urine test results and any discussion as to impairment, instead he focuses on representation by the applicant, his opinion on legal issues instead of providing a medical opinion. Dr. Lohiya based his opinion on the applicant's self-reporting and not on credible medical evidence and he discusses interpretation of legal theories clearly outside of his realm of expertise. There is little if any probative value to his reporting and thus his report is deemed not substantial medical evidence. (WCJ's Opinion on Decision, March 10, 2021, pp. 1-6.)

PTPRelied upon · emergency medicine

Tested positive for cocaine unconfirmed; 'unconfirmed' means only one test was done, not a second confirmatory test.

From the decision · page 5a urine drug screen. Dr. Chou Barrett further testified that urine sample collections are normally done by nursing staff who transfers it to the laboratory. The results of the test returned noting positive unconfirmed for cocaine. It is her understanding that "unconfirmed" simply means one test was done and not a second one (Def Ex E, pg 13, ln17).

ADJ11522221 · April 18, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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