ADJ12582828 · January 3, 2023

The WCJ's finding of injury AOE/COE to the knees, elbows and wrists is supported by substantial evidence including the uncontradicted QME opinion and credible applicant testimony, which the WCJ found persuasive.

From the decision · page 7The record reflects that the QME Dr. Dell performed a thorough and complete evaluation of applicant. He reviewed applicant's voluminous medical records and obtained additional diagnostic testing of the thoracic spine, lumbar spine and both knees. His causation opinion was provided to a reasonable medical probability and is consistent with the several years that applicant performed repetitive work for defendant. There is no medical evidence in the record challenging the conclusions reached by Dr. Dell. In the absence of contrary evidence, we are bound to accept the uncontradicted and unimpeached findings of the medical expert where it constitutes substantial medical evidence to support industrial causation for the employee's injury.

There is insufficient evidence in the record to determine the correct occupational group number; further development of the record is necessary to resolve this factual dispute.

From the decision · page 9There is insufficient evidence in the current record to determine whether applicant's occupational group number is 322 or 420. Upon return to the trial level, the parties must further develop the record on this issue. An updated job analysis may be obtained and any other necessary discovery to address this dispute again by the trier of fact.

Permanent disability rating is deferred pending further development of the record on occupational group number, as the occupational group is a necessary component for rating permanent disability.

From the decision · page 9III. Defendant contends that it was improper for the WCJ to order development of the record to address permanent disability for the knees. A WCJ has broad authority to issue orders to ensure proper adjudication of each claim, including "any interim, interlocutory and final orders, findings, decisions and awards as may be necessary to the full adjudication of the case." (Cal. Code Regs., tit. 8, § 10330.) This includes the authority to defer issues that the trier of fact determines are not ripe for adjudication. (See e.g., Cal. Code Regs., tit. 8, § 10787(a) [the WCJ may bifurcate the issues for trial and try them separately upon a showing of good cause].) Furthermore, as noted above, the employee's occupation is one of the necessary components to rate permanent disability. Since determination of the occupational group number requires further development of the record, applicant's level of permanent disability for all body parts must be deferred. In conclusion, we will grant reconsideration, rescind the FA&O and issue a new decision as outlined herein.

QME Dr. Stephen Dell's uncontradicted medical opinion supported injury AOE/COE to knees, elbows and wrists.

Favours Applicant prevailed

This medical opinion constituted substantial evidence supporting the injury findings in favor of the applicant.

From the decision · page 7The record reflects that the QME Dr. Dell performed a thorough and complete evaluation of applicant. He reviewed applicant's voluminous medical records and obtained additional diagnostic testing of the thoracic spine, lumbar spine and both knees. His causation opinion was provided to a reasonable medical probability and is consistent with the several years that applicant performed repetitive work for defendant. There is no medical evidence in the record challenging the conclusions reached by Dr. Dell. In the absence of contrary evidence, we are bound to accept the uncontradicted and unimpeached findings of the medical expert where it constitutes substantial medical evidence to support industrial causation for the employee's injury.

Applicant's credible testimony supported the finding of injury AOE/COE to knees, elbows and wrists.

Favours Applicant prevailed

The WCJ gave great weight to the applicant's testimony, which was not contradicted by substantial evidence, favoring the applicant's position.

From the decision · page 7The WCJ also based her finding of injury AOE/COE to the knees, elbows and wrists in part on applicant's credible testimony. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza,

There is insufficient evidence in the record to determine the correct occupational group number for permanent disability rating.

Favours neutral

This lack of evidence necessitated deferral and further development of the record to resolve the occupational group dispute.

From the decision · page 9There is insufficient evidence in the current record to determine whether applicant's occupational group number is 322 or 420. Upon return to the trial level, the parties must further develop the record on this issue. An updated job analysis may be obtained and any other necessary discovery to address this dispute again by the trier of fact.

Diagnosed cumulative trauma injury to multiple body parts with permanent and stationary condition as of April 14, 2020; provided whole person impairment ratings; found no basis for apportionment.

Dr. Dell's thorough evaluation and causation opinion to a reasonable medical probability was uncontradicted and supported the finding of injury AOE/COE to the knees, elbows and wrists.

From the decision · page 2Stephen Dell, M.D. evaluated applicant as the neurological qualified medical evaluator (QME) on April 14, 2020. (Joint Exhibit DD, Qualified Medical Evaluation report by Stephen Dell, M.D., April 14, 2020.) He diagnosed applicant with: cervical strain/sprain, thoracic strain/sprain, lumbosacral strain/sprain, probable lumbosacral radiculopathy, bilateral (right more than left) elbow strain/sprain, bilateral (right more than left) wrist strain/sprain and bilateral knee strain/sprain. (Id. at p. 15.) Dr. Dell concluded that applicant sustained a cumulative trauma injury to these body parts. (Id. at pp. 15 and 18.) His condition was considered permanent and stationary as of the examination date. (Id. at p. 16.) Whole person impairment (WPI) ratings were provided as follows: 5% to the cervical spine, 5% to the thoracic spine, 10% to the lumbar spine, 0% for both elbows, 0% for both wrists, 2% for each knee and 3% add-on for pain to be divided equally between the three spinal regions. (Id. at pp. 16-17.) Dr. Dell found no basis for apportionment. (Id. at pp. 18-19.)

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence; industrial causation must be 'not zero' to show sufficient contribution from work exposure; all reasonable doubts resolved in favor of the employee.

Applied to evaluate sufficiency of evidence for injury AOE/COE to knees, elbows and wrists.

From the decision · page 6Defendant contends that there is not substantial evidence to support the finding of injury AOE/COE to the knees, elbows and wrists. The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.)1 Applicant must only show that industrial causation was "not zero" to show sufficient contribution from work exposure. (Clark, supra, 61 Cal.4th at p. 303.) It has also long been established that "all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee." (Guerra v. Workers' Comp. Appeals Bd. (2016) 246

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Decisions of the Appeals Board must be supported by substantial evidence; medical opinion must be based on reasonable medical probability and adequate examination; surmise or speculation is insufficient.

Applied to assess the medical evidence supporting injury AOE/COE findings.

From the decision · page 7a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Dalen v. Workmen's Comp. Appeals Bd. (1972) 26 Cal.App.3d 497

Permanent disability rating must consider the injured employee's occupation; occupational group number is a question of fact; employee entitled to highest factor occupation if duties performed; evidence must show actual performance of duties for higher group.

Applied to determine the need for further development on occupational group number for permanent disability rating.

From the decision · page 8The 2005 PDRS contains 45 occupational group numbers. (2005 PDRS, p. 1-8.) Which occupational group number applies is a question of fact to be determined by the trier of fact. (Dalen v. Workmen's Comp. Appeals Bd. (1972) 26 Cal.App.3d 497, 503 [37 Cal.Comp.Cases 393].) It is well established that an "employee is entitled to be rated for the occupation which carries the highest factor in the computation of disability." (Id. at pp. 505-506.) However, to be entitled to an occupational group, there must be evidence that applicant actually performed the duties required of the more arduous occupation. (Holt v. Workers' Comp. Appeals Bd. (1986) 187 Cal.App.3d 1257 [51 Cal.Comp.Cases 576].) An employee may also be entitled to a higher occupational group number for an activity that is an integral part of the employee's occupation. (National Kinney v. Workers' Comp. Appeals Bd. (Casillas) (1980) 113 Cal.App.3d 203, 215-216 [45 Cal.Comp.Cases 1266].)

Applicant's credible testimony supporting injury to knees, elbows and wrists

From the decision · page 7The WCJ also based her finding of injury AOE/COE to the knees, elbows and wrists in part on applicant's credible testimony. We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza,