ADJ14929271 · September 23, 2022

The WCJ found the Applicant credible despite some inconsistencies and communication difficulties, and found Dr. Smith's medical report substantial evidence supporting industrial injury. The WCJ adopted the report and denied the Petition for Reconsideration.

From the decision · page 8Defendant argues that Applicant simply could not keep his story straight and is not credible. The trial court is the "sole judge" of witness credibility. David v. Kahn, 7 Cal.App.3d. 868, 874. The fact finders determination of the veracity of a witness is final. People v. Bobeda, 143 Cal.App.2d. 496, 500. Credibility determinations thus are subject to extremely deferential review. La Jolla Casa De Manana v. Hopkins, 98 Cal.App.2d 339, 345-346. In workers' compensation, the trier of fact must weigh all the evidence, including testimony and its credibility, to determine whether there is a sufficient record based upon which to make a finding. See generally Garza v. Workers' Comp. Appeals Bd., 3 Cal.3d 312. The credibility determinations of the workers' compensation judge are entitled to great weight and should not be disturbed when supported by substantial evidence because the judge has the opportunity to observe the demeanor of witnesses and weigh their statements with their manner on the stand. Id. at 319.

Applicant's observed low literacy and communication skills, including inability to spell his own name, supported his credibility despite inconsistencies in testimony.

Favours Applicant prevailed

This observation allowed the WCJ to reasonably explain variations in Applicant's testimony and find him credible.

From the decision · page 8Applicant testified credibly at the time of trial. He was calm and respectful through questioning. He appeared to put forth best effort to answer the questions. What was conspicuously obvious to the undersigned during the trial was Applicant's inability to understand and answer questions. Defendant argues that there was no evidentiary record establishing Applicant's literacy level. This statement is erroneous. His literacy level was evidenced by his inability to spell his own name. However, even absent this patent revelation on the record, the court is able to make a reasonable inference based upon observations at trial. Defendant also argues that a certified interpreter was present mitigating any language barrier. The fallacy herein was also demonstrated on the record when Applicant testified that he injured his waist. It was not until further probing by the attorneys, a physical demonstration in the courtroom, and discussion off the record, that the court was able to ascertain that Applicant was referring to his back as `waist'. An interpreter cannot account for cultural variances nor is an interpreter the solution to an Applicant's inept communication skills and literacy level.

Testimony from Martha Rocha that Applicant complained about knee and sciatic pain possibly as early as April 2021 supported timely reporting of injury despite Defendant's argument of late reporting.

Favours Applicant prevailed

This testimony countered Defendant's late reporting argument and supported the finding of industrial injury.

From the decision · page 8Defendant presented three witnesses at trial. Most probative to the issue of late reporting was the testimony of Martha Rocha the Food Service Program Manager. She testified that Applicant complained to her about knee and sciatic pain and she told him to go see a private doctor and that this conversation could have happened as far back as April. (MOH/SOE supra at p. 11:20- 23).

Dr. Smith's medical report and deposition confirmed findings consistent with the claimed injury and opined it was reasonably medically probable the Applicant could have injured his back and knee.

Favours Applicant prevailed

This medical opinion was relied upon as substantial evidence supporting the finding of industrial injury.

From the decision · page 4Dr. Smith issued his initial report after an evaluation on October 25, 2021. (Joint Exhibit Y). In Dr. Smith's report, the mechanism of injury is described as occurring on April 6, 2021, while carrying a container weighing approximately 180 to 200 pounds from one vehicle to another when he felt a pinch in his back and a crack in his left knee and left foot. Id. at p. 3. Dr. Smith diagnosed Applicant with a left knee meniscus tear and lumbar strain disc bulge. Id. at p. 18. Dr. Smith also reported symptom magnification or malingering and multiple medical symptoms not related to work injuries. Id. However, he ultimately concluded that the back and left knee symptoms, impairment and findings are consistent with the injuries claimed by the Applicant. Id. at p. 19.

Dr. Smith diagnosed a left knee meniscus tear and lumbar strain disc bulge consistent with the injury claimed by the Applicant, but expressed concerns about symptom magnification and malingering. He concluded the symptoms and findings are consistent with the claimed injuries and opined it is reasonably medically probable the Applicant could have injured his back and knee.

Dr. Smith's report and deposition were considered substantial medical evidence supporting industrial injury despite concerns about credibility and symptom magnification, as the final credibility determination was deferred to the trier of fact.

From the decision · page 4Dr. Smith issued his initial report after an evaluation on October 25, 2021. (Joint Exhibit Y). In Dr. Smith's report, the mechanism of injury is described as occurring on April 6, 2021, while carrying a container weighing approximately 180 to 200 pounds from one vehicle to another when he felt a pinch in his back and a crack in his left knee and left foot. Id. at p. 3. Dr. Smith diagnosed Applicant with a left knee meniscus tear and lumbar strain disc bulge. Id. at p. 18. Dr. Smith also reported symptom magnification or malingering and multiple medical symptoms not related to work injuries. Id. However, he ultimately concluded that the back and left knee symptoms, impairment and findings are consistent with the injuries claimed by the Applicant. Id. at p. 19.

E.L. Yeager Construction v. Workers' Comp. Appeals Bd., 71 Cal. Comp. Cases 1687

A medical opinion must be predicated on reasonable medical probability to be substantial evidence.

The WCJ reviewed Dr. Smith's report and deposition to determine if it met the standard of reasonable medical probability and found it substantial medical evidence.

Applicant's observed inability to understand and answer questions, including inability to spell his own name, indicating low literacy and communication skills

From the decision · page 8Applicant testified credibly at the time of trial. He was calm and respectful through questioning. He appeared to put forth best effort to answer the questions. What was conspicuously obvious to the undersigned during the trial was Applicant's inability to understand and answer questions. Defendant argues that there was no evidentiary record establishing Applicant's literacy level. This statement is erroneous. His literacy level was evidenced by his inability to spell his own name. However, even absent this patent revelation on the record, the court is able to make a reasonable inference based upon observations at trial. Defendant also argues that a certified interpreter was present mitigating any language barrier. The fallacy herein was also demonstrated on the record when Applicant testified that he injured his waist. It was not until further probing by the attorneys, a physical demonstration in the courtroom, and discussion off the record, that the court was able to ascertain that Applicant was referring to his back as `waist'. An interpreter cannot account for cultural variances nor is an interpreter the solution to an Applicant's inept communication skills and literacy level.

Testimony of Martha Rocha that Applicant complained about knee and sciatic pain possibly as early as April 2021, supporting timely reporting of injury

From the decision · page 8Defendant presented three witnesses at trial. Most probative to the issue of late reporting was the testimony of Martha Rocha the Food Service Program Manager. She testified that Applicant complained to her about knee and sciatic pain and she told him to go see a private doctor and that this conversation could have happened as far back as April. (MOH/SOE supra at p. 11:20- 23).