What the panel ordered
Petition for reconsideration granted; September 10, 2024 Findings and Order rescinded and substituted; further development of the record ordered.
Applicant sought reconsideration of the September 10, 2024 Findings and Order denying compensability of the August 16, 2011 injury as a consequence of the cumulative injury.
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's original decision was based on speculation and inconsistent medical reports from Dr. Potter, requiring further development of the record to clarify causation and injury details.
From the decision · page 1Applicant seeks reconsideration of the September 10, 2024 Findings and Order (F&O) wherein the workers' compensation administrative law judge (WCJ) found that applicant's claimed August 16, 2011 injury to the bilateral shoulders and lumbar spine (ADJ10027311) was a separate and distinct injury and not a compensable consequence of applicant's claimed cumulative injury to the bilateral knees, bilateral shoulders, and lumbar spine (ADJ7070471).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's testimony about the crawlspace conditions and fall
Favours Defendant prevailed
The WCJ found it plausible the fall could have occurred regardless of the knee condition, supporting the original denial of compensability.
From the decision · page 5Here, the WCJ and defendant contend that the August 16, 2011 incident was a separate and distinct injury based upon "the existing record" and applicant's trial testimony. (Answer, p. 2.; Opinion on Decision (OOD), p. 3.) As noted above, applicant testified he was in a five-foot tall crawlspace with wet plastic and uneven ground. (Minutes of Hearing, Order, and Summary of Evidence, June 11, 2024, p. 6.) The WCJ therefore found it "very plausible" that "the fall within that crawlspace would've occurred regardless of the status of [applicant's] knee." (OOD, p. 3.) We note, however, that the WCJ also acknowledged the reports of Agreed Medical Evaluator (AME), Dr. Charles Potter, were "incongruous at best" and "lack[ed] consistency." (OOD, p. 4.)
Inconsistent and incongruous medical reports from Dr. Potter
Favours neutral
The Board found the medical evidence insufficiently clear and ordered further development of the record.
From the decision · page 5Here, the WCJ and defendant contend that the August 16, 2011 incident was a separate and distinct injury based upon "the existing record" and applicant's trial testimony. (Answer, p. 2.; Opinion on Decision (OOD), p. 3.) As noted above, applicant testified he was in a five-foot tall crawlspace with wet plastic and uneven ground. (Minutes of Hearing, Order, and Summary of Evidence, June 11, 2024, p. 6.) The WCJ therefore found it "very plausible" that "the fall within that crawlspace would've occurred regardless of the status of [applicant's] knee." (OOD, p. 3.) We note, however, that the WCJ also acknowledged the reports of Agreed Medical Evaluator (AME), Dr. Charles Potter, were "incongruous at best" and "lack[ed] consistency." (OOD, p. 4.)
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.
Inconsistent reports on causation and impairment related to cumulative injury and August 16, 2011 incident; further clarity needed.
Reports were found to be incongruous and lacking consistency, requiring further development of the record.
From the decision · page 5Here, the WCJ and defendant contend that the August 16, 2011 incident was a separate and distinct injury based upon "the existing record" and applicant's trial testimony. (Answer, p. 2.; Opinion on Decision (OOD), p. 3.) As noted above, applicant testified he was in a five-foot tall crawlspace with wet plastic and uneven ground. (Minutes of Hearing, Order, and Summary of Evidence, June 11, 2024, p. 6.) The WCJ therefore found it "very plausible" that "the fall within that crawlspace would've occurred regardless of the status of [applicant's] knee." (OOD, p. 3.) We note, however, that the WCJ also acknowledged the reports of Agreed Medical Evaluator (AME), Dr. Charles Potter, were "incongruous at best" and "lack[ed] consistency." (OOD, p. 4.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
A petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Board found the petition timely as the case was transmitted and the report served on the same day, providing notice to the parties.
From the decision · page 3I. Preliminarily, former 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, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals
Labor Code section 3208.1; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227
A cumulative injury occurs from repetitive work activities causing disability or need for medical treatment; findings must be based on substantial evidence including medical opinion and testimony.
The Board reviewed the evidence and found the WCJ's findings lacked substantial evidence due to inconsistent medical opinions.
From the decision · page 4II. Turning to the merits of the Petition, applicant alleges that the August 16, 2011 incident to the bilateral shoulders and lumbar spine is a compensable consequence injury sustained as a result of the cumulative work injury from October 22, 2008 through October 22, 2009 to the bilateral knees, bilateral shoulders, and lumbar spine. A cumulative injury occurs from repetitive mental or physical activities at work over a period of time, causing disability or need for medical treatment. (§ 3208.1; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 234 [58 Cal.Comp.Cases 323]; J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327, 332-333 [49 Cal.Comp.Cases 224].) For any cumulative trauma claim, findings regarding the injury and the date of the injury must be based on substantial evidence such as medical opinion and testimony considering the entire record. (Garza v. Workmen's Comp. App. Bd. (Garza) (1970) 3 Cal.3d 312, 317-319 [33 Cal.Comp.Cases 500]; Austin, supra, at pp. 233- 241; City of Fresno v. Workers' Comp. Appeals Board (Johnson) (1985) 163 Cal.App.3d 470-473 [50 Cal.Comp.Cases 53]. Pursuant to section 5410, if a case has already been settled, within five years from the date of the original injury, the applicant must either establish that "the original injury" "caused new and
Labor Code sections 5701, 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138
The Appeals Board has discretionary authority to develop the record when medical evidence is not substantial or to provide due process.
The Board ordered further development of the record due to inconsistent and unclear medical opinions.
From the decision · page 6Further, it is well established that the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 9 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc), we stated that "Sections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record... the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.) The preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the case. (Id.)
What proof carried it
The evidence the panel weighed, by kind.
Inconsistent medical reports from Dr. Potter
From the decision · page 5Here, the WCJ and defendant contend that the August 16, 2011 incident was a separate and distinct injury based upon "the existing record" and applicant's trial testimony. (Answer, p. 2.; Opinion on Decision (OOD), p. 3.) As noted above, applicant testified he was in a five-foot tall crawlspace with wet plastic and uneven ground. (Minutes of Hearing, Order, and Summary of Evidence, June 11, 2024, p. 6.) The WCJ therefore found it "very plausible" that "the fall within that crawlspace would've occurred regardless of the status of [applicant's] knee." (OOD, p. 3.) We note, however, that the WCJ also acknowledged the reports of Agreed Medical Evaluator (AME), Dr. Charles Potter, were "incongruous at best" and "lack[ed] consistency." (OOD, p. 4.)
Applicant's testimony about the crawlspace conditions and fall
From the decision · page 5Here, the WCJ and defendant contend that the August 16, 2011 incident was a separate and distinct injury based upon "the existing record" and applicant's trial testimony. (Answer, p. 2.; Opinion on Decision (OOD), p. 3.) As noted above, applicant testified he was in a five-foot tall crawlspace with wet plastic and uneven ground. (Minutes of Hearing, Order, and Summary of Evidence, June 11, 2024, p. 6.) The WCJ therefore found it "very plausible" that "the fall within that crawlspace would've occurred regardless of the status of [applicant's] knee." (OOD, p. 3.) We note, however, that the WCJ also acknowledged the reports of Agreed Medical Evaluator (AME), Dr. Charles Potter, were "incongruous at best" and "lack[ed] consistency." (OOD, p. 4.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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