ADJ12677607 · May 27, 2021

The WCJ found applicant's testimony credible and Dr. Newman's medical reports substantial and more persuasive than Dr. Stearns' reports, establishing compensable industrial cumulative trauma injury.

From the decision · page 4The court reviewed the documentary and testimonial evidence submitted by the parties and found applicant's testimony credible. The court also found the medical reports of Dr. Newman to be substantial medical evidence on the issue of injury AOE/COE and more persuasive than those of Dr. Stearns. Petitioner argues that no other medical provider in over a year of medical treatment, other than Dr. Newman, had come up with the diagnosis of cumulative trauma injury and asserts that Dr. Wedemeyer found no cumulative trauma injury in any of his treatment

Applicant's credible testimony and Dr. Newman's substantial medical evidence established compensable industrial cumulative trauma injury.

Favours Applicant prevailed

Credibility and medical evidence persuaded the WCJ and Appeals Board to find injury compensable.

From the decision · page 4The court reviewed the documentary and testimonial evidence submitted by the parties and found applicant's testimony credible. The court also found the medical reports of Dr. Newman to be substantial medical evidence on the issue of injury AOE/COE and more persuasive than those of Dr. Stearns. Petitioner argues that no other medical provider in over a year of medical treatment, other than Dr. Newman, had come up with the diagnosis of cumulative trauma injury and asserts that Dr. Wedemeyer found no cumulative trauma injury in any of his treatment

Diagnosed industrial cumulative trauma cervical spine strain injury contributing to progression of cervical spondylosis and causing symptoms; found work-related cumulative trauma injury and no apportionment to pre-existing condition.

Reports found substantial medical evidence and more persuasive than Dr. Stearns' reports; diagnosis supported by review of medical history, MRI, and comprehensive evaluation.

From the decision · page 5Petitioner also argues that "Without new medical evidence, Dr. Newman's November 12, 2020 (sic) expounds a novel theory that the applicant's pre-existing neck issues were `lit up' by a cumulative trauma at IKEA." On page 8 of Dr. Newman's 6/30/2020 and 11/12/2020 reports under diagnostic impression he states, "work-related cumulative trauma cervical spine strain injury in association with cervical spondylosis and small disc-osteophyte complexes C-3 though C-6 and DDD C-3 through C-6." (emphasis added). This was not a novel theory nor one not based on the existing medical evidence. Dr. Newman reviewed the applicant's current and past work and medical history, the medical records, the MRI reports, and performed a comprehensive medical evaluation to support his diagnosis of industrial cumulative trauma. On page 13 of his November 12, 2020 report, Dr. Newman stated:

Found cervical spondylosis and left-sided cervical radiculitis likely unrelated to work; no evidence of acute or cumulative work injury; cervical spondylosis is degenerative and not caused by forklift work, though symptoms may be aggravated by work.

Reports found less persuasive than Dr. Newman's; opinion based on incorrect legal theory that injury cannot be industrial if caused by underlying disease process.

From the decision · page 6I have been asked to address the issue of causation. Based on the history given to me by Mister the applicant, the records reviewed by me, and my examination, with reasonable medical probability I find no evidence of acute or cumulative work injury. Cervical spondylosis is a naturally occurring degenerative process in the absence of significant cervical trauma such as fracture, dislocation, or severe sprain. Driving a forklift at work does not cause cervical spondylosis even though driving a forklift at work may cause existing cervical spondylosis to be symptomatic. Mister the applicant undoubtedly had arthritis in his neck when he began working at IKEA in December 2016 because the cervical spondylosis evident on his cervical MRI requires many years to develop - much more than the 19 months he worked at IKEA.

Apportionment of permanent disability is based on causation of permanent disability, not causation of injury; analyses differ.

Applied to distinguish injury causation from permanent disability apportionment in medical opinions.

From the decision · page 7Finally, Petitioner asserts that "Dr. Newman's reports confuse causation of injury with causation of permanent disability because he acknowledges that the January 8, 2019 MRI showed pre-existing spondylosis that was lit up by the work at IKEA, but fails to apportion to this pre-existing conditions (sic) despite objective findings supporting apportionment to this pathology." In Escobedo, the appeals board, en banc, held:

Dr. Newman's medical reports found substantial and more persuasive than Dr. Stearns'

From the decision · page 8The reports of Dr. Newman are in compliance with Regulation § 10682 and Labor Code § 4628 and are found to be substantial evidence and more persuasive than the reports and opinions of Dr. Stearns. It is well-established that a WCJ may select amongst admissible reports and rely upon those which are more persuasive. Here, the more persuasive reports are those of Dr. Newman. The applicant's injury is therefore compensable.

Applicant's credible testimony

From the decision · page 4The court reviewed the documentary and testimonial evidence submitted by the parties and found applicant's testimony credible. The court also found the medical reports of Dr. Newman to be substantial medical evidence on the issue of injury AOE/COE and more persuasive than those of Dr. Stearns. Petitioner argues that no other medical provider in over a year of medical treatment, other than Dr. Newman, had come up with the diagnosis of cumulative trauma injury and asserts that Dr. Wedemeyer found no cumulative trauma injury in any of his treatment