ADJ11364195 · September 8, 2023

The WCAB found that the record lacked substantial medical evidence to establish injury arising out of and in the course of employment, and the WCJ's prior finding was rescinded and remanded for further proceedings to develop the record.

From the decision · page 3determining the issue of whether applicant sustained an injury AOE/COE to his low back.3 Absent a finding (or stipulation by the parties) that applicant sustained an injury AOE/COE, the provisions of Labor Code section 3600(a)(10) are not applicable and cannot be addressed. Thus, we will rescind the F&O.

The record lacked substantial medical evidence establishing that applicant's low back condition was caused by an industrial injury.

Favours Defendant prevailed

Without substantial medical evidence on causation, the WCJ's prior finding of injury arising out of and in the course of employment could not stand.

From the decision · page 4Dr. Smith diagnosed acute sciatica and L4-5/L5-S1 disc protrusions with spinal canal stenosis (Def. Exh. B, p. 4) but he did not have the opportunity to review any of applicant's prior medical history, and he did not express an opinion as to whether applicant's symptoms were consistent with the mechanism of injury claimed by applicant. Again, the trial record contains no other medical evidence pertaining to the cause of applicant's lumbar spine condition. Nor is there any evidence or testimony corroborating applicant's assertion that he sustained an injury while working on March 13, 2018.

Dr. Smith diagnosed acute sciatica and L4-5/L5-S1 disc protrusions with spinal canal stenosis but did not review prior medical history or opine on causation; his opinion was based solely on applicant's history.

The opinion was not substantial evidence for causation as it lacked review of prior history and reasoning linking injury to employment.

From the decision · page 3Here, the only medical evidence pertaining to applicant's injury claim is the May 4, 2018, emergency department report from Dr. Smith wherein he stated, "The patient had a work-related injury approximate 1 month ago when he was swinging a tool and he was hitting a stone using a sledgehammer and pulsed hole digger building a fence." (Def. Exh. B, p. 1.) Clearly, Dr. Smith's statement was based solely on what he had been told by applicant.

Labor Code sections 3202.5, 3600(a)

Preponderance of the evidence standard for proving injury arising out of and in the course of employment.

Applicant must prove industrial causation is reasonably probable; work must be a contributing cause of injury.

From the decision · page 3It is well known that the employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297§ 298 (80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) `Preponderance of the evidence' is defined by section 3202.5 as the "evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence." (Lab. Code, § 3202.5.) For the purpose of meeting the causation requirement in a workers' compensation injury claim, it is sufficient if the work is a contributing cause of the injury. (South Coast Framing, supra, at 298-299.) It is applicant's burden to establish that industrial causation is reasonably probable. For an injury to "arise out of" the 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. (Citations.)" (South Coast Framing, supra, at 297.)

E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Medical expert opinion must be based on accurate history, examination, and reasoning to be substantial evidence.

Medical opinion not substantial if based on inadequate history or speculation; must set forth reasoning.

From the decision · page 4To be substantial evidence, an expert's medical opinion must be based on an accurate history and an examination, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager 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 (Appeals Board en banc).) "[A] medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (citations) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (citations)" (Gatten, supra, at p. 928.)

Dr. Smith's medical opinion was based solely on applicant's reported history and lacked independent corroboration or reasoning linking injury to employment.

From the decision · page 3Here, the only medical evidence pertaining to applicant's injury claim is the May 4, 2018, emergency department report from Dr. Smith wherein he stated, "The patient had a work-related injury approximate 1 month ago when he was swinging a tool and he was hitting a stone using a sledgehammer and pulsed hole digger building a fence." (Def. Exh. B, p. 1.) Clearly, Dr. Smith's statement was based solely on what he had been told by applicant.