What the panel ordered
Petition for Reconsideration granted; July 31, 2023 Findings and Order rescinded; matter returned to trial level for further proceedings.
Applicant sought reconsideration of the July 31, 2023 Findings and Order denying injury AOE/COE and ordering applicant take nothing; WCAB granted reconsideration, rescinded the F&O, and remanded for further proceedings.
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.
The WCJ found applicant not credible and no medical evidence was presented at trial; however, the Appeals Board found the record was insufficiently developed on the threshold issue of industrial causation and remanded for further development of the medical record.
From the decision · page 4Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, pp. 1-2.) In coming to this conclusion, the WCJ found that testimony by the applicant not credible. (OOD, pp. 2-3.) Applicant objected to the DOR because he was entitled to a comprehensive medical- legal evaluation with a qualified medical examiner in order to settle the current dispute with regards to compensability. More significantly, there was no medical evidence presented at the trial, and with respect to the issue of whether applicant sustained a cumulative injury, medical evidence regarding causation is key.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No medical evidence regarding causation was presented at trial.
Favours neutral
Medical evidence is required to determine compensability; its absence required remand for further development of the record.
From the decision · page 4Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, pp. 1-2.) In coming to this conclusion, the WCJ found that testimony by the applicant not credible. (OOD, pp. 2-3.) Applicant objected to the DOR because he was entitled to a comprehensive medical- legal evaluation with a qualified medical examiner in order to settle the current dispute with regards to compensability. More significantly, there was no medical evidence presented at the trial, and with respect to the issue of whether applicant sustained a cumulative injury, medical evidence regarding causation is key.
WCJ found applicant's testimony not credible.
Favours Defendant prevailed
Credibility finding contributed to denial at trial, but was not sufficient without medical evidence.
From the decision · page 4Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, pp. 1-2.) In coming to this conclusion, the WCJ found that testimony by the applicant not credible. (OOD, pp. 2-3.) Applicant objected to the DOR because he was entitled to a comprehensive medical- legal evaluation with a qualified medical examiner in order to settle the current dispute with regards to compensability. More significantly, there was no medical evidence presented at the trial, and with respect to the issue of whether applicant sustained a cumulative injury, medical evidence regarding causation is key.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code §§ 3600(a), 3202.5; South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291
The employee bears the burden of proving the injury arose out of and in the course of employment by a preponderance of the evidence.
Applied to determine whether applicant met burden for AOE/COE.
From the decision · page 3The employee bears the burden of proving the injury arose out of and in the course of employment by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.)1 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].) The phrase "in the course of employment" "`ordinarily refers to the time, place, and circumstances under which the injury occurs.'" (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651 [63 Cal.Comp.Cases 253], citing Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 733.) An "employee is in the `course of his employment' when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do." (Latourette, supra, at p. 651.) For the injury to arise out of employment, it must "`occur by reason of a condition or incident of [the] employment.' [citation] That is, the employment and the injury must be linked in some causal fashion. [citation]" (Id. at p. 651.)
Lab. Code, §§ 4060(c)(d), 4061(i), 4062.3(l)
Medical evidence is required if there is an issue regarding the compensability of the claim.
Applied to require medical evidence for compensability determination.
From the decision · page 4Medical evidence is required if there is an issue regarding the compensability of the claim. (Lab. Code, § 4060(c)(d), 4061(i), 4062.3(l).) A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)
Lab. Code, §§ 5701, 5906; Nunes (Grace) v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue.
Applied to remand for further development of the medical record.
From the decision · page 5The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (Lab. Code, § 5701, 5906; Nunes (Grace) v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741, 752; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 392-394 [62 Cal.Comp.Cases 924]; McDonald v. Workers' Comp. Appeals Bd., TLG Med. Prods. (2005) 70 Cal.Comp.Cases 797, 802.) The Appeals Board has a constitutional mandate to ensure "substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403.)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony found not credible by WCJ, but no medical evidence was presented at trial.
From the decision · page 4Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, pp. 1-2.) In coming to this conclusion, the WCJ found that testimony by the applicant not credible. (OOD, pp. 2-3.) Applicant objected to the DOR because he was entitled to a comprehensive medical- legal evaluation with a qualified medical examiner in order to settle the current dispute with regards to compensability. More significantly, there was no medical evidence presented at the trial, and with respect to the issue of whether applicant sustained a cumulative injury, medical evidence regarding causation is key.
Absence of medical evidence regarding causation at trial was outcome-determinative for remand.
From the decision · page 4Here, applicant claimed a cumulative injury but the WCJ found that he did not meet his burden of proof to support industrial causation and ordered that he take nothing. (F&O, pp. 1-2.) In coming to this conclusion, the WCJ found that testimony by the applicant not credible. (OOD, pp. 2-3.) Applicant objected to the DOR because he was entitled to a comprehensive medical- legal evaluation with a qualified medical examiner in order to settle the current dispute with regards to compensability. More significantly, there was no medical evidence presented at the trial, and with respect to the issue of whether applicant sustained a cumulative injury, medical evidence regarding causation is key.
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