ADJ14612291 — California WCAB decision

ADJ14612291 · December 9, 2024

The WCAB granted the petition for reconsideration, rescinded the original Findings of Fact and Orders, and substituted a new F&O finding that applicant sustained cumulative trauma injury to the lumbar spine through March 30, 2021, deferred the date of injury issue, and ordered further development of the record on hips and legs injury and other issues.

Issues decided

Medical opinions weighed

Authorities named

District office

Santa Ana

What the panel ordered

Defendant sought reconsideration of the Findings of Fact and Orders issued on September 10, 2024, which the WCJ had issued. The WCAB granted reconsideration, rescinded the original F&O, and substituted a new F&O clarifying the cumulative trauma injury findings and deferring some issues.

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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.

Cumulative traumaApplicant prevailedlumbar spine

The WCAB found substantial medical evidence, including PQME Dr. Nicola's report and credible testimony, supporting that applicant sustained cumulative trauma injury to the lumbar spine through March 30, 2021.

From the decision · page 10Here, we concur with the WCJ that PQME Dr. Nicola's reporting constitutes substantial medical evidence because it is based upon reasonable medical probability, pertinent facts, adequate examination and history, and sets forth reasoning in support of its conclusions. (Report, p. 4.) Contrary to defendant's argument, the fact that the medical record on which Dr. Nicola relied does not show that applicant reported back pain resulting from his increased work duties does not suggest that the reporting lacked adequate history.

The facts that decided it

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

Applicant was exposed to repetitive physically traumatic activities over a period of time causing cumulative trauma injury to the lumbar spine.

Favours Applicant prevailed

This fact was supported by credible testimony and medical evidence, leading to the finding of compensable cumulative trauma injury.

From the decision · page 3[fn 1] Defendant does accurately identify a scrivener's error in the Findings of Fact and Orders. The date of injury is 03/30/2021 pursuant to Labor Code § 5412.... IS THERE SUBSTANTIAL EVIDENCE OF 03/30/2021 CUMULATIVE TRAUMA INJURY TO SUPPORT THE FINDING OF FACT AND ORDERS IN ADJ14612308?... The undersigned considered both Applicant and Witness Ruiz statements confirmed in sworn, credible testimony that COVID-19 halted inmate worker assistance, requiring employees to "buddy up," causing increased work as well as a breadth of repetitive activities performed for Defendant in the form of sweeping, mopping, taking industrial trash bags full of foods as well as liquids out of trash cans, transporting them to larger big industrial trash cans outside the facility for up to eight (8) trash cans in each of three (3) modules, three (3) times a day, and providing provisions for approximately 200 inmates in the form of food (and milk) after "COVID hit."[fn]... The material facts confirmed by both witnesses are that Applicant was exposed to repetitive physically traumatic activities extending over a period of time, the

PQME Dr. Nicola's medical report provided substantial medical evidence supporting the cumulative trauma injury finding.

Favours Applicant prevailed

The report was based on reasonable medical probability, pertinent facts, adequate examination and history, and reasoning, which the WCAB relied upon.

From the decision · page 10Here, we concur with the WCJ that PQME Dr. Nicola's reporting constitutes substantial medical evidence because it is based upon reasonable medical probability, pertinent facts, adequate examination and history, and sets forth reasoning in support of its conclusions. (Report, p. 4.) Contrary to defendant's argument, the fact that the medical record on which Dr. Nicola relied does not show that applicant reported back pain resulting from his increased work duties does not suggest that the reporting lacked adequate history.

Credible testimony of applicant and supervisor about increased repetitive work activities after COVID-19 pandemic supported the injury claim.

Favours Applicant prevailed

The WCJ and WCAB gave great weight to this testimony, which corroborated the medical opinion and supported the injury finding.

The WCJ's order for further development of the record on hips and legs injury was within proper discretion and necessary for due process.

Favours Defendant prevailed

This justified affirming the order to develop the record further on these issues.

From the decision · page 10The Appeals Board has the discretionary authority to order development of the record when appropriate to provide due process or fully adjudicate the issues consistent with due process. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121§ 1122 [63 Cal.Comp.Cases 261, 264§ 265].)

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Substantial evidence must support findings of industrial injury, including medical opinions framed in reasonable medical probability and based on adequate facts and examination.

The WCAB applied this standard to find PQME Dr. Nicola's report substantial medical evidence supporting cumulative trauma injury.

From the decision · page 9Turning to the merits of defendant's argument, we observe that all decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [113 Cal. Rptr. 162, 520 P.2d 978, 39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [83 Cal. Rptr. 208, 463 P.2d 432, 35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [262 Cal. Rptr. 537, 54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) To constitute substantial evidence "...

San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928

The Appeals Board has discretionary authority to order further development of the record to provide due process and fully adjudicate issues.

The WCAB applied this standard to affirm the WCJ's order for further development on hips and legs injury.

From the decision · page 10The Appeals Board has the discretionary authority to order development of the record when appropriate to provide due process or fully adjudicate the issues consistent with due process. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121§ 1122 [63 Cal.Comp.Cases 261, 264§ 265].)

ADJ14612291 · December 9, 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

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