ADJ15334962 · June 4, 2024

Applicant failed to prove injury AOE/COE due to inconsistent testimony, lack of medical treatment during employment, and credible defense testimony.

From the decision · page 1Applicant seeks reconsideration of the March 6, 2024 Findings and Order, wherein the workers' compensation judge (WCJ) found that applicant had not met his burden of proof demonstrating that he sustained cumulative injury arising out of and in the course of employment (AOE/COE) to various body parts while employed by defendant as bar barback from September 24, 2019 to August 24, 2020, and was therefore not entitled to any compensation in this case.

Applicant did not report any work-related injury or seek medical treatment during employment.

Favours Defendant prevailed

This undermined the claim of injury arising out of employment and supported denial of compensability.

From the decision · page 6He did not report an injury during the continuous trauma period. He did not seek any orthopedic medical treatment prior to his termination and did not report the claim.

Applicant's testimony was inconsistent and unreliable, failing to recall prior injuries and treatment and failing to disclose subsequent employment.

Favours Defendant prevailed

Credibility issues led to rejection of applicant's claim and medical evidence.

From the decision · page 5The applicant's credibility is questionable and his testimony is unreliable. He provides an inconsistent medical history and is an undependable historian as he does not recall prior treatment, prior accidents. injuries or symptoms. His subsequent work history also leads one to conclude that he was ab] to continue in his nom1al employment. He did not seek any medical treatment while still employed and there is no evidence of treatment until over a year after his termination. He fails to disclose all of his subsequent employment to Dr. Pietruzska or Dr. Fraizer. Also, there is no substantial medical evidence of a work related injury during the claimed continuous trauma.

Favours Defendant prevailed

Supported the finding that injury was not established as arising out of employment.

Provided history of cumulative trauma claim with heavy lifting and hostile work environment; noted back pain starting two months after employment start.

Applicant's inconsistent history and testimony undermined the report's reliability, but it was considered substantial medical evidence.

From the decision · page 4PQME Dr. Shawn Zardouz, in his report dated May 20, 2022, detailed the following history:

No history of prior orthopedic injuries or motor vehicle accidents noted.

From the decision · page 5The report of Dr. Pietruszka dated March 2, 2022, contains no history of prior orthopedic injuries or motor vehicle accidents. In fact, on page 3, paragraph one,

Labor Code section 3600(a)

Labor Code section 3600(a) provides liability for injuries arising out of and in the course of employment without regard to negligence.

Applicant bears burden of proving injury AOE/COE by preponderance of evidence.

From the decision · page 1Labor Code section 3600(a)1 provides for liability for injuries sustained "arising out of and in the course of the employment." An employer is liable for workers' compensation benefits "without regard to negligence." (Lab. Code, § 3600(a).) An employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing, Inc. v. Workers'

Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346

Whether an injury arose out of and in the course of employment is a question of fact determined by the circumstances of the case.

Fact question to be determined by the trier of fact based on evidence and credibility.

From the decision · page 2Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.) Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the particular circumstances of the case. (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346, 353 [67 Cal.Comp.Cases 51].)

Applicant's inconsistent and unreliable testimony, including failure to recall prior treatment, accidents, and injuries, and failure to disclose subsequent employment.

From the decision · page 5The applicant's credibility is questionable and his testimony is unreliable. He provides an inconsistent medical history and is an undependable historian as he does not recall prior treatment, prior accidents. injuries or symptoms. His subsequent work history also leads one to conclude that he was ab] to continue in his nom1al employment. He did not seek any medical treatment while still employed and there is no evidence of treatment until over a year after his termination. He fails to disclose all of his subsequent employment to Dr. Pietruzska or Dr. Fraizer. Also, there is no substantial medical evidence of a work related injury during the claimed continuous trauma.