ADJ11161737 — California WCAB decision

What the panel ordered

Petition for reconsideration denied; WCJ's finding of no injury AOE/COE affirmed.

Applicant petitioned for reconsideration of a WCJ decision denying injury AOE/COE; WCAB reviewed and adopted the 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.

Psyche AOE/COEDefendant prevailedpsyche · internal

Applicant's testimony was found not credible and could not be relied upon; medical opinions supporting injury were based solely on applicant's self-reporting and lacked objective corroboration; the reporting of Dr. Appleton, QME in psychology, was found to be substantial evidence supporting denial of injury.

From the decision · page 4On 10/21/2022, this Court issued the Findings and Order and Opinion on Decision at issue herein. This Court Found that Applicant did not sustain injury arising out of and in the course of said employment as alleged based upon the medical reporting of the psychology QME, Dr. Appleton, and because Applicant's testimony was not credible and could not be relied upon as the basis for any Findings by the Court.

The facts that decided it

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 · psychology

Dr. Appleton opined that applicant's cognitive impairment and memory issues rendered his self-report unreliable; found no substantial evidence of industrial injury based on objective evidence; his reporting was relied upon by the WCJ and WCAB to deny injury.

Relied upon as substantial evidence; comprehensive analysis based on multiple evaluations and extensive data.

From the decision · page 8Despite those differences, and despite Dr. Appleton's unique way of expressing those differences, the undersigned WCJ still believes that the opinions given Dr. Appleton do amount to substantial evidence on the issue of injury as alleged in this case. Dr. Appleton issued five comprehensive medical reports in this case (Court's Exhibits X1, X2, X3, X4, and X5) and had his deposition taken once (Court's Exhibits X6), giving the parties ample opportunity to address any concerns they had with his reporting. Dr. Appleton provided a comprehensive analysis of Applicant's condition based upon multiple, and difficult, evaluations of the Applicant and on the extensive data and medical record available for the Applicant. Those evaluations by Dr. Appleton were both remarkable and, apparently, quite difficult, as evidenced by the following notation by the doctor:

PTPRejected

Dr. Olney opined in deposition that industrial injury was the predominant cause, but her opinion was found preliminary, not based on reasonable medical probability, and not reliable as it relied on applicant's self-reporting.

Rejected as not substantial evidence; not based on reasonable medical probability and relied on applicant's self-reporting.

From the decision · page 6Despite the problems with Applicant's testimony and reporting of his injury, Petitioner continues to urge the Board to rely upon the medical opinions of Applicant's personal treating physician, Dr. Christine Olney, to form the basis of an injury finding. Petitioner concludes that "[b]ased upon the treating doctor, industrial injury is the predominant cause...[and this Court] erred by ignoring and/or rejecting this evidence" (Petition, page 3, lines 23 to 24). That opinion by the doctor was given at a deposition, appears preliminary based upon the questions asked by Applicant's counsel, is not based upon reasonable medical probability, and cannot be relied upon by the Court. In addition, this Court cannot rely upon that medical opinion for the same reason it cannot rely upon the medical opinion of Dr. Sherry Fieman, as discussed below.

QMERejected · neurology

Dr. Fieman's opinion supporting injury was rejected because it relied on applicant's self-reporting without objective evidence, despite knowledge of applicant's psychotic symptoms and substance abuse.

Rejected as not substantial evidence; relied on applicant's self-reporting without objective corroboration.

From the decision · page 6"I found it remarkable that Dr. Feiman, aware that the applicant suffers from psychotic symptoms which impair his reality testing, and abusing heavy amounts of alcohol and marijuana, would go so far as to accept his allegations of work stress at their face without concurrent objective evidence, which the doctor did not have." (Court's Exhibit X3, page 11)

The rules the panel named

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

Labor Code §3208.3(b)(2)

Labor Code §3208.3(b)(2) provides a lower causation standard for violent acts, but requires credible evidence of such acts.

Not applied because applicant's testimony regarding violent acts was not credible and uncorroborated.

From the decision · page 7Finally, Petitioner contends that Applicant was the victim of sexual assault and battery that rise to the level of violent acts (Petition, pages 4 to 5), thus necessitating use of the lower causation standard of substantial cause contained in Labor Code § 3208.3(b)(2). This Court did not address the substantial cause standard in the Opinion on Decision for the same reasons illustrated above. The only basis for those sexual assault allegations is Applicant's own uncorroborated testimony. That testimony is not credible and cannot be relied upon to make any Findings of fact. As stated above, the undersigned WCJ could not tell if the events Applicant described were accurately described, simply exaggerated, or made up entirely. There is no substantial evidence, therefore, to support any Finding that Applicant was the victim of a violent act as required by Labor Code § 3208.3(b)(2).

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525]

The relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions.

Applied to credit Dr. Appleton's opinion as substantial evidence despite contrary opinions from other physicians.

From the decision · page 1We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

Garza v. WCAB (1970) 35 CCC 500, 504-505; Lamb v. WCAB (1974) 39 CCC 310, 314; Western Electric Co. v. WCAB (Smith) (1979) 44 CCC 1145, 1152

WCJ's credibility determination should be given great weight and only rejected based on contrary evidence of considerable substance.

Applied to uphold WCJ's finding that applicant's testimony was not credible.

From the decision · page 6This Court's credibility determination should be given great weight by the appeals board. (See Garza v. WCAB (1970) 35 CCC 500, 504-505). That credibility determination should only be rejected based upon contrary evidence of considerable substance. (Lamb v. WCAB (1974) 39 CCC 310, 314; Western Electric Co. v. WCAB (Smith) (1979) 44 CCC 1145, 1152). Here, Petitioner points to no such evidence other than the testimony of Applicant himself.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony was found not credible due to inconsistencies, memory impairment, and lack of corroboration; testimony changed when confronted and included implausible statements.

From the decision · page 5This Court disagrees with Petitioner that Applicant's demeanor at trial was "calm, deliberate, and detailed." The undersigned WCJ found Applicant's testimony to be exaggerated, lacking any support beyond his own memory of the events, and rather scary. The undersigned WCJ could not tell if the events Applicant described were accurately described, exaggerated, or made up entirely. It is certain that Applicant currently believes that the events described happened the way he describes them, but it became clear that Applicant's description of events could change from any given telling of those events and based upon who is asking the questions.

Medical recordsfavours Defendant prevailed

Medical records and opinions of Dr. Appleton, who conducted multiple evaluations and relied on objective evidence, were credited over opinions based solely on applicant's self-reporting.

From the decision · page 8Despite those differences, and despite Dr. Appleton's unique way of expressing those differences, the undersigned WCJ still believes that the opinions given Dr. Appleton do amount to substantial evidence on the issue of injury as alleged in this case. Dr. Appleton issued five comprehensive medical reports in this case (Court's Exhibits X1, X2, X3, X4, and X5) and had his deposition taken once (Court's Exhibits X6), giving the parties ample opportunity to address any concerns they had with his reporting. Dr. Appleton provided a comprehensive analysis of Applicant's condition based upon multiple, and difficult, evaluations of the Applicant and on the extensive data and medical record available for the Applicant. Those evaluations by Dr. Appleton were both remarkable and, apparently, quite difficult, as evidenced by the following notation by the doctor:

ADJ11161737 · December 29, 2022