ADJ11670075 — California WCAB decision

What the panel ordered

The WCAB affirmed the WCJ's Findings of Fact and Award, dismissed defendant's petitions for reconsideration and removal, and denied the requests for disqualification of the WCJ.

The WCJ issued Findings of Fact and Award on March 16, 2022, which was then reconsidered by the WCAB panel on September 15, 2022, affirming the WCJ's decision and dismissing defendant's petitions for reconsideration and removal.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold February 1, 2022.

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 prevailedhead · neck · brain · shoulders · back · bilateral legs · right thigh · right femur · internal system · nervous system · psyche · pulmonary · eyes

The WCJ found that the applicant sustained work-related injuries not barred by exclusions for self-inflicted injury or suicide, supported by medical records and testimony. The WCAB affirmed this finding, rejecting defendant's arguments and petitions.

From the decision · page 9On March 16, 2022, the WCJ issued his F&A, finding that applicant sustained injury to the "head, neck, brain, shoulders, back, bilateral legs, right thigh, right femur, internal system, nervous system, psyche, pulmonary, eyes, and others deferred." (F&A, at p. 1.) The WCJ further found that applicant's injuries were "not barred by any affirmative defense." (Id.) The WCJ awarded reimbursement for self-procured medical treatment and ongoing medical treatment, with all other issues deferred. (Id. at pp. 1§ 2.) According to the Electronic Adjudication Management System ("EAMS"), the F&A was filed at 9:22 a.m.

The facts that decided it

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

Applicant sustained injury to multiple body parts including head, neck, brain, shoulders, back, legs, right thigh, right femur, internal system, nervous system, psyche, pulmonary, and eyes.

Favours Applicant prevailed

This fact supports the finding of compensable injury arising out of and in the course of employment.

From the decision · page 9On March 16, 2022, the WCJ issued his F&A, finding that applicant sustained injury to the "head, neck, brain, shoulders, back, bilateral legs, right thigh, right femur, internal system, nervous system, psyche, pulmonary, eyes, and others deferred." (F&A, at p. 1.) The WCJ further found that applicant's injuries were "not barred by any affirmative defense." (Id.) The WCJ awarded reimbursement for self-procured medical treatment and ongoing medical treatment, with all other issues deferred. (Id. at pp. 1§ 2.) According to the Electronic Adjudication Management System ("EAMS"), the F&A was filed at 9:22 a.m.

Defendant's witnesses lacked knowledge of applicant's mental state and medical records, making their speculation about intent to self-harm not probative.

Favours Applicant prevailed

This undermines defendant's argument that the injury was self-inflicted and supports compensability.

From the decision · page 168 Several of defendant's witnesses who examined the scene of the accident opined that they believed applicant acted with intent to take his own life. None, however, had any knowledge of applicant as an individual or any knowledge of applicant's mental state at the time of the accident, nor had any of them reviewed any medical records or other information tending to show that applicant acted with intent to cause injury to himself. We do not consider such speculation to be evidence of any significant probative value.

Medical records from treating physicians immediately following the injury were admitted and showed injury to specific body parts.

Favours Applicant prevailed

This medical evidence supports the finding of injury causation and compensability.

From the decision · page 24Although we certainly agree that it is unfortunate that the parties elected to proceed to trial on the issue of AOE/COE without a report from a Qualified Medical Examiner ("QME") or other medical-legal expert, we disagree with defendant's assertion that there is no medical evidence of causation in the record. As the WCJ makes clear in the Report, the findings of injury to specific body parts were based upon review of the treating notes of applicant's treating physicians at the hospital where he received care immediately following his injury until his discharge several weeks later, admitted at trial as Exhibits 12 through 15.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code sections 5900(a), 5902, 5903; Rymer v. Hagler (1989) 211 Cal.App.3d 1171; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39

A petition for reconsideration may only be taken from a final order, decision, or award.

The first Petition was not a final order and thus reconsideration was not available as a remedy.

From the decision · page 11FIRST PETITION Next, we consider the first Petition's allegation that the WCJ erred in cutting short Dr. Balaban's testimony on the grounds that it was legally irrelevant. A petition for reconsideration may properly be taken only from a "final" order, decision, or award. (Lab. Code, § 5900(a), 5902, 5903.) A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1180; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd. (Pointer) (1980) 104 Cal.App.3d 528, 534- 535 [45 Cal.Comp.Cases 410]; Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (Kramer) (1978) 82 Cal.App.3d 39, 45 [43 Cal.Comp.Cases 661]) or determines a "threshold"

Cal. Code Regs., tit. 8, 10955(a); Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274

Removal is an extraordinary remedy granted only if substantial prejudice or irreparable harm will result if removal is not granted.

The first Petition failed to show substantial prejudice or irreparable harm to justify removal.

From the decision · page 12Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that substantial prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, § 10955(a); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, § 10955(a).)

The WCJ did not abuse discretion in limiting Dr. Balaban's testimony as irrelevant and/or cumulative.

The WCAB found no error in the WCJ's decision to limit the expert testimony.

From the decision · page 15Under the circumstances, we do not believe the WCJ abused his discretion in deciding that further testimony from Dr. Balaban would be irrelevant and/or cumulative. Dr. Balaban had expressed his opinion as to whether applicant could have fallen over the safety railing accidentally without first climbing it, and it does not appear that there is any further testimony he was prepared to provide that would have had any legal relevancy to the dispute. Accordingly, the WCJ did not err by limiting Dr. Balaban's testimony to the extent he did.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Testimony of applicant's coworker that applicant was positive, happy, and in a good mood on the day of the fall, with no knowledge of how the fall occurred.

From the decision · page 4Alison Stauf, a coworker of applicant, testified that applicant was positive, happy, and had an infectious personality. (Id. at p. 74.) On the day of the fall, he seemed "very positive" and "super happy" and was in a "good mood." (Id. at pp. 74§ 75.) She was not with applicant at the time of the fall and had no idea how it occurred. (Id. at p. 76.)

Testimony and credibilityfavours Applicant prevailed

Defendant's witnesses speculated applicant acted with intent to take his own life but had no knowledge of applicant's mental state or medical records, thus their testimony lacked probative value.

From the decision · page 168 Several of defendant's witnesses who examined the scene of the accident opined that they believed applicant acted with intent to take his own life. None, however, had any knowledge of applicant as an individual or any knowledge of applicant's mental state at the time of the accident, nor had any of them reviewed any medical records or other information tending to show that applicant acted with intent to cause injury to himself. We do not consider such speculation to be evidence of any significant probative value.

Medical recordsfavours Applicant prevailed

Medical records from treating physicians immediately following the injury admitted at trial, supporting injury to multiple body parts.

From the decision · page 24Although we certainly agree that it is unfortunate that the parties elected to proceed to trial on the issue of AOE/COE without a report from a Qualified Medical Examiner ("QME") or other medical-legal expert, we disagree with defendant's assertion that there is no medical evidence of causation in the record. As the WCJ makes clear in the Report, the findings of injury to specific body parts were based upon review of the treating notes of applicant's treating physicians at the hospital where he received care immediately following his injury until his discharge several weeks later, admitted at trial as Exhibits 12 through 15.

ADJ11670075 · September 15, 2022

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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