ADJ13173519 · October 13, 2023

The WCJ found the applicant's testimony not credible and rejected the medical evidence based on the unsupported injury mechanism; the WCAB rejected the WCJ's credibility finding and remanded for trial de novo to reconsider the injury issue with proper consideration of medical evidence and presumption of compensability.

From the decision · page 1Applicant seeks reconsideration of the July 25, 2023 Findings and Order wherein the workers' compensation administrative law judge (WCJ) found that applicant did not sustain industrial injury while employed as a cook on December 15, 2019. We have considered the allegations of the Petition for Reconsideration and the contents of the WCJ's Report with respect thereto. Based on our review of the record, and for the reasons stated below, we will grant reconsideration, rescind the July 25, 2023 Findings and Order, and return this matter to the Presiding Judge for reassignment to a new WCJ for a trial de novo. This is not a final decision on the merits of any issues raised in the petition and any aggrieved person may timely seek reconsideration of the WCJ's new decision.

Applicant's trial testimony was not credible to support the claimed injury mechanism, undermining the medical evidence based on that mechanism.

Favours Defendant prevailed

The WCJ rejected injury AOE/COE due to lack of credible testimony supporting the injury mechanism, which was essential for medical opinions finding injury.

From the decision · page 2The case went to trial on the issue of injury AOE/COE and the undersigned determined that the Applicant's testimony did not support the claimed mechanism of injury. It was determined that the Applicant was not a credible witness and that the medical evidence finding injury AOE/COE was not substantial medical evidence because the claimed mechanism of injury was not supported by the trial testimony.

Surveillance video did not show the applicant being struck at the time claimed in the incident report, contradicting the injury claim.

Favours Defendant prevailed

This contradicted the applicant's contemporaneous incident report and undermined the credibility of the injury claim.

From the decision · page 2The parties stipulated at trial that the in-house security cameras which filmed the location where the alleged incident took place did not show the applicant being struck in any manner by Arthur between the hours of 7 to 8 pm.

Emergency department medical records and ambulance records documented the injury history and diagnosis of back pain, lumbar strain, contusion, and muscle spasms despite lack of external trauma signs.

Favours Applicant prevailed

These medical records provide expert evidence supporting injury AOE/COE, which the WCAB found the WCJ improperly discounted.

From the decision · page 6Comm. (McLaughlin) (1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188].) Emergency Department records show that, applicant reported "a coworker accidentally turned into her while carrying a Tupperware container [hitting] in the back causing the injury." (Palmdale Regional Medical, Emergency Department records, at p. 13, applicant's Exhibit 10.) While a physical examination revealed "no abrasion, ecchymosis or erythema" as the WCJ notes, the examining physician, Amiram Shneiderman, M.D., diagnosed applicant with "[b]ack pain, lumbar strain, contusion [i.e., bruise], [and] muscle spasms." (Palmdale Regional Medical, Emergency Department records, at p. 13, applicant's Exhibit 10.) Moreover, ambulance records showed evidence of redness in the thoracic area stating: "PT CHIEF COMPLAINT WAS BACK PAIN X30 MINUTES. PT STATED THAT ANOTHER MCDONALDS EMPLOYEE HIT HER WITH

The WCAB rejected the WCJ's credibility determination and remanded for trial de novo to reconsider the injury issue with proper consideration of medical evidence and presumption of compensability.

Favours Applicant prevailed

This legal authority and decision directs a new trial to properly evaluate the injury claim and medical evidence.

From the decision · page 7We acknowledge the WCJ's reservations regarding applicant's credibility. And while we accord great weight to WCJs' findings on the credibility of witnesses, if they are supported by "ample, credible evidence" or "substantial evidence," we exercise independent judgment as to whether the evidence satisfies the required elements of the applicable law and may reject findings of the WCJ upon our review of the record. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500].) The Appeals Board is empowered on reconsideration to resolve conflicts in the evidence, to make its own credibility determinations, and to reject the findings of the WCJ and enter its own findings on the basis of its review of the record. (Rubalcava v. Workers' Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.)) Applicant's testimony at trial appears consistent with the reports of the ambulance personnel (defendant's Exhibit B), the emergency department records (applicant's Exhibit 10), and the statement written by applicant on the date of injury. (Defendant's Exhibit A.) However, while we reject the WCJ's credibility determination for the reasons stated above, we do not make our own credibility determination here but instead will send this back to the presiding judge for reassignment to a new WCJ for a trial de novo pursuant to our authority under section 53102.

Diagnosed back pain, lumbar strain, contusion, and muscle spasms based on applicant's history of being struck in the back by a coworker with a Tupperware container; physical exam showed no redness, bruising, or abrasion.

Medical diagnosis based on applicant's reported injury mechanism; physical findings did not show external trauma signs but diagnosis was accepted as medical evidence.

From the decision · page 3The medical records from the Emergency Department document this specific mechanism of injury (Exhibit C). The attending physician Amiram Shneiderman MD took a history of the injury of;

Found injury arising out of and in the course of employment based on the mechanism of injury reported by the applicant.

Medical opinion relied on the injury mechanism reported by the applicant, which was disputed at trial but not conclusively rejected by the WCAB on reconsideration.

From the decision · page 2The Applicant was subsequently examined in May of 2020 by Dr. Rouzbeh Masrour who, based on the history and mechanism of injury reported to him by the Applicant, found injury arising out of and in the course of employment (AOE/COE) (Exhibit 9). The applicant was also evaluated by Panel Qualified Medical Examiner Dr. Michael Tooke on [March 17, 2022] who also found injury AOE/COE based on the same mechanism of injury (Exhibit D).

Found injury arising out of and in the course of employment based on the history and mechanism of injury reported by the applicant.

Medical opinion based on applicant's reported injury mechanism; relied upon by the panel despite credibility issues with the applicant's testimony.

From the decision · page 2The Applicant was subsequently examined in May of 2020 by Dr. Rouzbeh Masrour who, based on the history and mechanism of injury reported to him by the Applicant, found injury arising out of and in the course of employment (AOE/COE) (Exhibit 9). The applicant was also evaluated by Panel Qualified Medical Examiner Dr. Michael Tooke on [March 17, 2022] who also found injury AOE/COE based on the same mechanism of injury (Exhibit D).

Labor Code section 5903; LeVesque v. Worker's Comp. Appeals Bd. (1970) 1 Cal.3d. 627

Substantial evidence standard for WCAB decisions

The WCAB reviews whether the evidence supports the findings and may reject WCJ findings if not supported by substantial evidence.

From the decision · page 5The decisions of the Workers' Compensation Appeals Board must be supported by

Labor Code sections 5906, 5908

Appeals Board's authority to grant reconsideration and make new findings

The Appeals Board may rescind or amend prior orders and reopen the entire record for review on reconsideration.

From the decision · page 5Moreover, section 5906 provides that "[u]pon the filing of a petition for reconsideration... the appeals board may, with or without further proceedings and with or without notice affirm, rescind, alter, or amend the order, decision, or award made and filed by the appeals board or the workers' compensation judge..." (Lab. Code, § 5906.) Similarly, section 5908 provides that "[a]fter... a consideration of all the facts the appeals board may affirm, rescind, alter, or amend the original order, decision, or award." (Lab. Code, § 5908.)

Peter Kiewit Sons v. Ind. Acc. Comm. (McLaughlin) (1965) 234 Cal.App.2d 831

Expert medical evidence required for medical diagnosis and injury findings

Medical diagnosis requires expert evidence; lay opinion is insufficient for substantial evidence of injury.

Applicant's trial testimony was found not credible by the WCJ but the WCAB rejected this credibility finding on reconsideration and remanded for trial de novo.

From the decision · page 7We acknowledge the WCJ's reservations regarding applicant's credibility. And while we accord great weight to WCJs' findings on the credibility of witnesses, if they are supported by "ample, credible evidence" or "substantial evidence," we exercise independent judgment as to whether the evidence satisfies the required elements of the applicable law and may reject findings of the WCJ upon our review of the record. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 319 [35 Cal.Comp.Cases 500].) The Appeals Board is empowered on reconsideration to resolve conflicts in the evidence, to make its own credibility determinations, and to reject the findings of the WCJ and enter its own findings on the basis of its review of the record. (Rubalcava v. Workers' Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.)) Applicant's testimony at trial appears consistent with the reports of the ambulance personnel (defendant's Exhibit B), the emergency department records (applicant's Exhibit 10), and the statement written by applicant on the date of injury. (Defendant's Exhibit A.) However, while we reject the WCJ's credibility determination for the reasons stated above, we do not make our own credibility determination here but instead will send this back to the presiding judge for reassignment to a new WCJ for a trial de novo pursuant to our authority under section 53102.

Surveillance video from 7 to 8 pm did not show the applicant being struck as claimed, contradicting the incident report time and mechanism.

From the decision · page 2The parties stipulated at trial that the in-house security cameras which filmed the location where the alleged incident took place did not show the applicant being struck in any manner by Arthur between the hours of 7 to 8 pm.