ADJ11670075 · September 15, 2022

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.

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.

Testified that applicant could not have accidentally fallen over the safety railing, but testimony was limited by WCJ as legally irrelevant since he had no first-hand information or medical record review.

The WCJ limited Dr. Balaban's testimony as legally irrelevant and cumulative, and the WCAB affirmed this limitation, finding no error in the WCJ's discretion.

From the decision · page 8Finally, defendant attempted to present Martin Balaban, Ph.D., a biomechanics expert who intended to testify that based on his review of the circumstances surrounding the fall, applicant could not have accidentally fallen over the safety railing. (Id. at pp. 112§ 117.) After hearing this information, the WCJ indicated that because Dr. Balaban did not see the applicant, had not reviewed his medical records, and had no first-hand information on the case, his testimony would not be germane to any relevant legal issue. (Id. at pp. 118§ 119.) After confirming that Dr. Balaban could not testify as to applicant's state of mind at the time of the fall, the WCJ announced he would take no further testimony from the witness, over defendant's objection that they were being denied

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.

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.)

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 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.