ADJ11290690 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, Findings and Award upheld.

Petition for Reconsideration filed by defendant Oak River Insurance Company administered by Berkshire Hathaway Homestate Companies, challenging the Findings and Award regarding latency period and date of injury, denied by the WCAB panel.

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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/COEApplicant prevailedacute myeloid leukemia

The WCJ and WCAB found no substantial medical evidence to determine a specific latency period for the AML cancer, and the date of injury was set based on the last date of injurious exposure, June 18, 2017, with the cumulative trauma period from June 18, 2016 to June 18, 2017. The Petition for Reconsideration challenging this was denied.

From the decision · page 4Codefendant questioned the date of injury, alleging that the latency period determines the date of injury. The WCJ ruled that there was no substantial medical evidence to find a latency period in this case and Oak River filed a Petition for Reconsideration of that issue on March 15, 2022.

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

Dr. Brautbar opined that the applicant's AML was caused by his 25-year history of exposure to benzene and other chemicals as a painter, but he could not determine a specific latency period for the cancer.

The doctor stated that latency could not be determined due to the long exposure period and lack of specific exposure data.

From the decision · page 4Oak River argues that the Findings and Award are not supported by the medical reports of Dr. Brautbar and Dr. Ahdab as neither are substantial medical evidence. However, they only focus on the issue of latency period. There are no arguments disputing the industrial AOE/COE finding as to the AML. Both Dr. Brautbar and Dr. Ahdab indicate that the AML was caused by his 25 year history of working as a painter and being exposed to benzene and other chemicals from the paint. Defendant's arguments do not refute that. Instead, they focus exclusively on the latency period argument. Petitioner states that Dr. Brautbar finds that latency cannot be determined in this case since the applicant has been a painter for his employer for 25 years. Petitioner says that the articles attached to Dr. Brautbar's report offer evidence of the fact that there is a method for finding a latency period. Yet, Dr. Brautbar reports that he cannot determine what the latency period is.

QMERelied upon

Dr. Ahdab agreed that the AML was caused by the entire period of employment exposure and that the latency period could not be determined with reasonable medical probability.

Dr. Ahdab testified that the latency question is cumulative and cannot be pinpointed to a specific time, and that speculation would be required to determine it.

From the decision · page 5His opinion is mirrored by that of Dr. Ahdab who found on his own that the entire period of employment was the cause of his cancer and that the latency period could not be determined with reasonable medical probability. Defendant argues that Dr. Ahdab is displeased withthe bureaucratic process and has a prejudicial view that caused him to fail to make a clear determination of the latency period. Unfortunately, we simply cannot force Dr. Ahdab to provide an opinion when the evidence does not support such a finding. He states several times that in order to do so he would simply be required to speculate. In his deposition of September 27, 2021, he testified as follows:

ADJ11290690 · May 16, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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