ADJ11364195 — California WCAB decision

What the panel ordered

The February 25, 2021 Findings and Order is rescinded and the matter is returned to the WCJ for further proceedings consistent with the opinion and to issue a new decision.

Defendant sought reconsideration of the WCJ's Findings and Order issued on February 25, 2021, which found applicant injured in the course and scope of employment; the WCJ report recommended denial of the petition; the WCAB rescinded the F&O and returned the matter to the WCJ for further proceedings.

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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.

AOE/COERemandedlow back

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medical evidence to establish injury arising out of and in the course of employment, and the WCJ's prior finding was rescinded and remanded for further proceedings to develop the record.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 facts that decided it

The rules the panel named

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

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.)

ADJ11364195 · September 8, 2023

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

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