ADJ16773219 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Petition for Reconsideration of WCJ's denial of injury AOE/COE and admissibility of Dr. Granado's reports; WCAB reviewed and adopted WCJ's report and denied reconsideration.

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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.

Earnings / average weekly earningsDefendant prevailed

Dr. Granado's reports were obtained for the sole purpose of rebutting the QME and did not provide recommendations for medical treatment; thus, they are inadmissible under section 4605.

From the decision · page 11Here, applicant argues that Dr. Granado's reports are admissible pursuant to section 4605 because she obtained Dr. Granado's reports to discuss proper medical treatment. Applicant disputes that the recommendations were generic, and applicant further argues that the determination that Dr. Granado's reports were obtained for the sole purpose of rebutting Dr. Welborn's reports must be set aside because Dr. Granado did not review those reports. However, applicant's arguments are undercut by Dr. Granado's failure to provide any recommendations for medical treatment in her second report. (See proposed Exhibit 2.) Furthermore, applicant does not explain why the reports are needed to rebut the recommendations for future medical treatment that Dr. Welborn made since both physicians recommended the same course of treatment. Similarly, applicant does not address why generic recommendations for treatment would render a report admissible. Therefore, Dr. Granado's reporting is not admissible pursuant to section 4605.

The facts that decided it

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

Applicant's job was sedentary and would not cause cumulative trauma to the knee or ankle.

Favours Defendant prevailed

Supported by QME and applicant's testimony; no industrial causation for cumulative trauma.

From the decision · page 13Further, Dr. Welborn found that the sedentary nature of applicant's job would not cause a cumulative trauma to applicant's knee or ankle. (Exhibit 101 at 24: Exhibit 102 at pp. 11:11- 11:21, 16:20-18:7; 24:19-24:21, 30:1-30:5.) His determination [ i s ] substantial evidence as [ i t ] is based on an adequate medical history, and his description of applicant's job duties matches applicant's testimony. Further, Dr. Welborn's opinion regarding the causation of the meniscus tear that was discovered in 2015 does not form a basis to reject his reporting. Moreover, applicant's testimony does not support a finding that applicant had a cumulative injury because applicant did not testify as to any sort of change in the intensity or frequency of this symptom. Accordingly, applicant has not met her burden of proving an injury to her left knee and ankle through May 22, 2022.

Dr. Granado's reports were obtained for rebuttal purposes and did not provide treatment recommendations in the second report.

Favours Defendant prevailed

Reports inadmissible under Labor Code section 4605; no basis to allow deposition or rely on reports.

From the decision · page 11Here, applicant argues that Dr. Granado's reports are admissible pursuant to section 4605 because she obtained Dr. Granado's reports to discuss proper medical treatment. Applicant disputes that the recommendations were generic, and applicant further argues that the determination that Dr. Granado's reports were obtained for the sole purpose of rebutting Dr. Welborn's reports must be set aside because Dr. Granado did not review those reports. However, applicant's arguments are undercut by Dr. Granado's failure to provide any recommendations for medical treatment in her second report. (See proposed Exhibit 2.) Furthermore, applicant does not explain why the reports are needed to rebut the recommendations for future medical treatment that Dr. Welborn made since both physicians recommended the same course of treatment. Similarly, applicant does not address why generic recommendations for treatment would render a report admissible. Therefore, Dr. Granado's reporting is not admissible pursuant to section 4605.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon

Applicant's sedentary job would not cause cumulative trauma to her knee or ankle; the roller-skating accident was not industrially related; applicant's symptoms in 2018 were not a new cumulative trauma or aggravation of the 2014 injury.

Opinion credited as substantial evidence based on adequate medical history and consistent with applicant's job duties and testimony.

From the decision · page 13Further, Dr. Welborn found that the sedentary nature of applicant's job would not cause a cumulative trauma to applicant's knee or ankle. (Exhibit 101 at 24: Exhibit 102 at pp. 11:11- 11:21, 16:20-18:7; 24:19-24:21, 30:1-30:5.) His determination [ i s ] substantial evidence as [ i t ] is based on an adequate medical history, and his description of applicant's job duties matches applicant's testimony. Further, Dr. Welborn's opinion regarding the causation of the meniscus tear that was discovered in 2015 does not form a basis to reject his reporting. Moreover, applicant's testimony does not support a finding that applicant had a cumulative injury because applicant did not testify as to any sort of change in the intensity or frequency of this symptom. Accordingly, applicant has not met her burden of proving an injury to her left knee and ankle through May 22, 2022.

otherRejected

Opined that applicant suffered a cumulative trauma and that the left ankle fracture was a compensable consequence of the left knee injury; recommended further medical evaluation.

Report found inadmissible as it was obtained for rebuttal purposes and did not provide treatment recommendations in the second report.

From the decision · page 11Here, applicant argues that Dr. Granado's reports are admissible pursuant to section 4605 because she obtained Dr. Granado's reports to discuss proper medical treatment. Applicant disputes that the recommendations were generic, and applicant further argues that the determination that Dr. Granado's reports were obtained for the sole purpose of rebutting Dr. Welborn's reports must be set aside because Dr. Granado did not review those reports. However, applicant's arguments are undercut by Dr. Granado's failure to provide any recommendations for medical treatment in her second report. (See proposed Exhibit 2.) Furthermore, applicant does not explain why the reports are needed to rebut the recommendations for future medical treatment that Dr. Welborn made since both physicians recommended the same course of treatment. Similarly, applicant does not address why generic recommendations for treatment would render a report admissible. Therefore, Dr. Granado's reporting is not admissible pursuant to section 4605.

The rules the panel named

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

Lab. Code, § 5909

Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board; service of the WCJ's report constitutes notice of transmission.

Board timely acted on petition within 60 days of transmission and service of WCJ's report.

From the decision · page 1Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Lab. Code, § 4605; Batten v. WCAB (2015) 241 Cal.App.4th 1009

Reports by consulting or attending physicians under section 4605 are not admissible as sole basis for award and must address medical treatment, not rebut QME.

Dr. Granado's reports inadmissible as they were for rebuttal, not treatment.

From the decision · page 11Section 4605 permits the admission of a report by a consulting or attending physician, and section 4061, subdivision (i) permits the admission of an evaluation prepared by a treating physician. Neither section permits the admission of a report by an expert who is retained solely for the purpose of rebutting the opinion of the panel qualified medical expert's opinion. (Ibid.)

Lab. Code, §§ 3600(a), 5705; South Coast Framing v. WCAB (Clark) (2015) 61 Cal.4th 291; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Applicant bears burden of proving injury AOE/COE by reasonable medical probability, not certainty.

Applicant did not meet burden to prove injury AOE/COE to left knee and ankle.

From the decision · page 12Additionally, applicant bears the burden of proving injury AOE/COE. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302; Lab. Code, § 5705; 3600(a); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc).) The Supreme Court of California has long held that an employee need only show that the "proof of industrial causation is reasonably probable, although not certain or `convincing.'" (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413.) "That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701.)

What proof carried it

The evidence the panel weighed, by kind.

expert methodologyfavours Defendant prevailed

Dr. Welborn's medical history and job description matched applicant's testimony and supported no cumulative trauma.

From the decision · page 13Further, Dr. Welborn found that the sedentary nature of applicant's job would not cause a cumulative trauma to applicant's knee or ankle. (Exhibit 101 at 24: Exhibit 102 at pp. 11:11- 11:21, 16:20-18:7; 24:19-24:21, 30:1-30:5.) His determination [ i s ] substantial evidence as [ i t ] is based on an adequate medical history, and his description of applicant's job duties matches applicant's testimony. Further, Dr. Welborn's opinion regarding the causation of the meniscus tear that was discovered in 2015 does not form a basis to reject his reporting. Moreover, applicant's testimony does not support a finding that applicant had a cumulative injury because applicant did not testify as to any sort of change in the intensity or frequency of this symptom. Accordingly, applicant has not met her burden of proving an injury to her left knee and ankle through May 22, 2022.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony regarding her job duties and lack of change in symptoms did not support cumulative trauma.

From the decision · page 13Further, Dr. Welborn found that the sedentary nature of applicant's job would not cause a cumulative trauma to applicant's knee or ankle. (Exhibit 101 at 24: Exhibit 102 at pp. 11:11- 11:21, 16:20-18:7; 24:19-24:21, 30:1-30:5.) His determination [ i s ] substantial evidence as [ i t ] is based on an adequate medical history, and his description of applicant's job duties matches applicant's testimony. Further, Dr. Welborn's opinion regarding the causation of the meniscus tear that was discovered in 2015 does not form a basis to reject his reporting. Moreover, applicant's testimony does not support a finding that applicant had a cumulative injury because applicant did not testify as to any sort of change in the intensity or frequency of this symptom. Accordingly, applicant has not met her burden of proving an injury to her left knee and ankle through May 22, 2022.

ADJ16773219 · June 3, 2025