California WCABPanel decision

ADJ14292521 · May 20, 2024

Petition for Reconsideration denied.

Issues decided: 2
Medical opinions weighed: 1
Authorities named: 3
District office: San Diego

What the panel ordered

Petition for Reconsideration denied.

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.

Reconsideration / removalDefendant prevailed

The issue of removal of Dr. Wachs was not raised at trial and cannot be raised for the first time on reconsideration; petitioner failed to prove grounds for removal under the regulation.

From the decision · page 4III. PETITIONER ASSERTS FOR THE FIRST TIME IN ITS PETITION FOR RECONSIDERATION THAT DR. WACHS SHOULD BE REMOVED FROM THE CASE

Substantial evidence / credibilityApplicant prevailedlumbar spine

Dr. Wachs' opinion is supported by the entire medical record, trial testimony, and proper legal standards on aggravation of pre-existing conditions; the WCJ found applicant's testimony credible and Dr. Wachs' opinion substantial medical evidence.

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The facts that decided it

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

The issue of removal of Dr. Wachs as Panel Qualified Medical Evaluator was not raised at trial and cannot be raised for the first time on reconsideration.

Favours Defendant prevailed

This procedural bar led to denial of the petition for removal of Dr. Wachs.

From the decision · page 4III. PETITIONER ASSERTS FOR THE FIRST TIME IN ITS PETITION FOR RECONSIDERATION THAT DR. WACHS SHOULD BE REMOVED FROM THE CASE

Dr. Wachs' August 17, 2023 medical report is substantial medical evidence on injury arising out of and in the course of employment to applicant's low back.

Favours Applicant prevailed

The Board relied on this report to uphold the injury finding and deny reconsideration.

From the decision · page 9A decision by a WCJ must be supported by substantial medical evidence. (Labor Code section 5952.) The Workers' Compensation Appeals Board has a constitutional mandate to "accomplish substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403, citing Article XIV, section 4 of the California Constitution.) Following his review of the complete file in this matter, Dr. Wachs concludes that the applicant sustained an aggravation of his underlying spinal impairment as the result of a cumulative trauma injury caused by his employment as a Sterile Processing Technician for Scripps Health. (Court Exhibit X, p. 8-9.) The acceleration or aggravation of, a pre-existing, nonindustrial condition is sufficient to establish an industrial injury. (Guerra v. WCAB ( 016) 81 Cal. Comp. Cases 324, 328.) Citing California etc. Exchange v. Ind. Acc. Com. (1946) 76 Cal.App.2d 836, 840, the court in Guerra states:

Applicant's credible testimony described job duties involving lifting 50 to 75 pounds, bending, stooping, and kneeling.

Favours Applicant prevailed

This testimony supported Dr. Wachs' opinion and the Board's finding of injury causation.

From the decision · page 6Petitioner also asserts that Dr. Wachs' reference to the applicant lifting from 50 to 75 pounds is factually inaccurate. (Petition for Reconsideration, 13:1- 3.) Petitioner states: "[a]t trial there was no evidence to support those lifting requirements" (Petition for Reconsideration, 13:3-4.) Contrary to petitioner's assertion, the applicant specifically testified to this fact at trial. the applicant testified that the trays containing the instruments should have weighed 25 pounds or less because that is what they weigh when they are sent into the operating room. (MOH/SOE, 7/18/22, 8:15-16.) However, the technicians in the operating room tend to place all of the used instruments into one or two trays, so they are much heavier when they return from the operating

The rules the panel named

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

Guerra v. WCAB (2016) 81 Cal. Comp. Cases 324, 328

Acceleration or aggravation of a pre-existing disease is an injury in the occupation causing such acceleration.

Dr. Wachs applied this standard in concluding the applicant sustained a cumulative trauma injury aggravating a pre-existing spinal impairment due to employment.

From the decision · page 9A decision by a WCJ must be supported by substantial medical evidence. (Labor Code section 5952.) The Workers' Compensation Appeals Board has a constitutional mandate to "accomplish substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403, citing Article XIV, section 4 of the California Constitution.) Following his review of the complete file in this matter, Dr. Wachs concludes that the applicant sustained an aggravation of his underlying spinal impairment as the result of a cumulative trauma injury caused by his employment as a Sterile Processing Technician for Scripps Health. (Court Exhibit X, p. 8-9.) The acceleration or aggravation of, a pre-existing, nonindustrial condition is sufficient to establish an industrial injury. (Guerra v. WCAB ( 016) 81 Cal. Comp. Cases 324, 328.) Citing California etc. Exchange v. Ind. Acc. Com. (1946) 76 Cal.App.2d 836, 840, the court in Guerra states:

Gay v. WCAB (1979) 96 Cal.App.3d 555

Medical evidence must be evaluated as a whole, not in isolated parts.

The Board considered Dr. Wachs' medical opinion as a whole and found it substantial medical evidence despite isolated statements cited by petitioner.

From the decision · page 5Petitioner asserts the medical opinion of Dr. Wachs is not substantial medical evidence on the issue of injury AOE/COE. To support its position, petitioner points to various statements in Dr. Wachs' reporting and deposition. It is important to note that medical evidence must be evaluated as a whole. (Gay v. WCAB (1979) 96 Cal.App.3d 555, 564.)

Labor Code section 5952; Kuykendall v. WCAB (2000) 79 Cal.App.4th 396, 403

A decision by a WCJ must be supported by substantial medical evidence. The WCAB has a constitutional mandate to accomplish substantial justice in all cases.

The WCJ's findings were supported by substantial medical evidence and the Board's constitutional mandate to accomplish substantial justice.

From the decision · page 9A decision by a WCJ must be supported by substantial medical evidence. (Labor Code section 5952.) The Workers' Compensation Appeals Board has a constitutional mandate to "accomplish substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403, citing Article XIV, section 4 of the California Constitution.) Following his review of the complete file in this matter, Dr. Wachs concludes that the applicant sustained an aggravation of his underlying spinal impairment as the result of a cumulative trauma injury caused by his employment as a Sterile Processing Technician for Scripps Health. (Court Exhibit X, p. 8-9.) The acceleration or aggravation of, a pre-existing, nonindustrial condition is sufficient to establish an industrial injury. (Guerra v. WCAB ( 016) 81 Cal. Comp. Cases 324, 328.) Citing California etc. Exchange v. Ind. Acc. Com. (1946) 76 Cal.App.2d 836, 840, the court in Guerra states:

ADJ14292521 · May 20, 2024

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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