ADJ11102338 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Applicant seeks reconsideration of the Findings and Award issued by the WCJ on June 2, 2022, which denied permanent disability for psychiatric injury under Labor Code section 4660.1(c)(2)(A). The WCAB panel denies 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.

Psyche AOE/COEDefendant prevailedleft elbow · left wrist · right wrist · psyche · neck · shoulders

The WCJ and WCAB found that the injury from slipping and falling and being struck by a weedwhacker was not a violent act as defined by the statute and case law, applicant did not lose consciousness, continued working, and did not seek immediate treatment, thus not meeting the violent act threshold.

From the decision · page 5Here, the WCJ found that applicant's psyche injury was not compensable under section 4660.1(c)(2)(A) because the act of slipping and falling and being struck in the elbow by a weedwhacker was not a "violent act" within the meaning of the statute. We agree with the WCJ's conclusion. Significantly, since applicant did not provide testimony at trial, it is unclear exactly how the injury occurred, and the WCJ was unable to weigh the testimony and determine whether the event was of the type that would be considered a violent act. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500] [WCJ's credibility determination given great weight because the WCJ has the opportunity to observe the demeanor of the witnesses].)

The facts that decided it

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

Applicant did not testify at trial, so the WCJ could not assess credibility or demeanor regarding the violent act claim.

Favours Defendant prevailed

This lack of testimony prevented the WCJ from making a credibility determination necessary to find a violent act.

From the decision · page 5Here, the WCJ found that applicant's psyche injury was not compensable under section 4660.1(c)(2)(A) because the act of slipping and falling and being struck in the elbow by a weedwhacker was not a "violent act" within the meaning of the statute. We agree with the WCJ's conclusion. Significantly, since applicant did not provide testimony at trial, it is unclear exactly how the injury occurred, and the WCJ was unable to weigh the testimony and determine whether the event was of the type that would be considered a violent act. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500] [WCJ's credibility determination given great weight because the WCJ has the opportunity to observe the demeanor of the witnesses].)

Applicant did not lose consciousness, continued working for six weeks, and did not seek immediate medical treatment after the injury.

Favours Defendant prevailed

These facts indicated the force of the incident was not extreme or intense enough to qualify as a violent act.

Applicant's injury history changed over time, and her account lacked credibility.

Favours Defendant prevailed

The inconsistent injury history undermined the claim that the injury was caused by a violent act.

From the decision · page 8Wilson v. State of California (2019) 84 CCC 393. There, the Board defined a "violent act" as an act characterized by either a strong physical force, extreme or intense force, or by an act that is vehemently or passionately threatening. Applicant's injury does not fit the Board's definition of a "violet act" in Wilson. She was not struck by a car or a projectile, did not lose consciousness, did not fall from a significant height, continued to work full duty for six weeks, without seeking medical treatment; and did not sustain a traumatic brain injury or any head injury. Given the change in history from what she initially reported to the health providers and what she reported to the QME's years later, Applicant's account of how she was injured lacks credibility.

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.

QMEPartially credited · psychiatry

Diagnosed major depressive disorder with paranoid trends, opined that the major depression was predominantly caused by the work injury and that the weedwhacker incident likely constituted a violent act, but left the legal determination to the trier of fact.

Dr. Lopez opined the weedwhacker incident likely constituted a violent act but the legal determination was for the trier of fact.

From the decision · page 3In all medical probability, the examinee's Major Depression is the result predominantly (over 51%) from the work injury of September 24, 2014.

PTPNot substantial evidence

Evaluated applicant shortly after injury; documented injury history and physical findings but no psychiatric opinion.

From the decision · page 2BACKGROUND Applicant, while employed on September 24, 2014 as a laborer by Wallis Construction, Inc., sustained injury AOE/COE to her left elbow, left wrist, right wrist, and psyche, and claims to have sustained injury AOE/COE to her neck and shoulders, consisting of myofascial pain. (Minutes of Hearing, April 28, 2022, p. 2.) According to the record, applicant waited roughly 1 months to seek treatment for her physical injuries, at which point she visited Doctors on Duty, where she was evaluated by Michael Luder, M.D. on November 7, 2014. (Exh. D-2, Doctor's First Report of Work Injury, Michael Luder, M.D., November 7, 2014.) During her visit, applicant informed Dr. Luder that, when the injury occurred, she was "using a weed whacker, lost her footing and hit her left elbow into a wall...." (Exh. D-2, p. 1.) Thereafter, on December 2, 2014, applicant visited an Urgent Care facility where she similarly told Robert Martin, PT (physical therapist) that the injury occurred when "[s]he was weedwhacking in [a] small space...She lost footing and fell into [a] wall hitting (L) elbow with wall and weedwhacker." (Exh. D-3, Robert Martin PT Report, December 2, 2014, p.

QMENot substantial evidence

Evaluated applicant in 2017; no specific psychiatric opinion detailed in the provided text.

From the decision · page 21.) According to the record, applicant provided various different versions as to how her injury occurred during subsequent doctors' visits between 2015 and 2017, stating at various times that: (1) her injury was caused by repetitive use working in construction; (2) that a "jackhammer" fell on her arm; (3) that a "hand held compactor" struck her left elbow when she tried to block it from striking a door; (4) that a "200-pound" weedwhacker fell on her left arm; (5) that the weedwhacker became stuck, she tripped, fell backward, and the machine struck her left elbow; and (6) that her feet got stuck in the mud, she fell backward, and the weedwhacker's handle hit her left elbow. (Exh. J-7, Alberto G. Lopez, M.D., Panel Qualified Medical Evaluation, February 7, 2019, pp. 10- 20, 30; Exh. J-4, Panel Qualified Medical Evaluation, Patrick McCreesh, M.D., November 10, 2017, p. 8; Exh.

The rules the panel named

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

South Coast Framing v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291

An employee must prove injury AOE/COE by a preponderance of the evidence.

Applied to the burden of proof for injury AOE/COE.

From the decision · page 3DISCUSSION An employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297-298, 302; Lab. Code, § 3600(a); 3202.5.) With respect to psychiatric injuries, section 3208.3(b) provides, in relevant part, as follows: (1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.

Labor Code section 3208.3(b)(1)-(2)

To establish compensability of psychiatric injury, employee must show actual events of employment were predominant cause; if injury resulted from violent act, employee must show events were substantial cause.

Applied to the burden of proof for psychiatric injury compensability and violent act exception.

From the decision · page 3DISCUSSION An employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297-298, 302; Lab. Code, § 3600(a); 3202.5.) With respect to psychiatric injuries, section 3208.3(b) provides, in relevant part, as follows: (1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.

Labor Code section 4660.1(c)(1)-(2)

No increase in impairment ratings for psychiatric disorder unless injury resulted from violent act or catastrophic injury.

Applied to the limitation on impairment rating increases and violent act exception.

From the decision · page 3For injuries occurring on or after January 1, 2013, section 4660.1(c) provides as follows:

ADJ11102338 · August 5, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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