ADJ11389287 · March 30, 2021

The WCJ and WCAB found Dr. Vyas's medical opinion substantial and credible, rejecting Applicant's arguments against it, and found insufficient evidence of industrial causation due to short employment and lack of symptom development time.

From the decision · page 3Applicant's first argument is this WCJ erred in relying on the medical reporting of Dr. Shail Vyas as she contends that it is not substantial medical evidence. In support of this position, Applicant contends that there are four separate reasons that the medical report(s) do not constitute substantial evidence: (1) The job duties that Applicant testified to at trial were not taken into account by Dr. Vyas, (2) The medical report is internally inconsistent regarding Applicant's complaints of pain, (3) Applicant testified that she spent only 5 minutes with Dr. Vyas, and (4) The Dr. Vyas fails to provide an explanation for Applicant's diagnostic findings.

Applicant employed only 140 days (20 weeks)

Favours Defendant prevailed

Insufficient length of employment to develop cumulative trauma injury

From the decision · page 1Applicant was employed as a janitor for OS4LABOR dba Rally Staffing Invo PEO, Inc., from November 14, 2017 to April 3, 2018 (a total of 140 days or 20 weeks) and claimed industrial injuries to her arms, shoulders, elbows, wrists, hands, fingers, back and lumbar spine. Defendant timely denied the claim.

Applicant did not disclose additional job duties to treating or evaluating doctors

Favours Defendant prevailed

Lack of disclosure did not undermine substantiality of medical evidence from QME

From the decision · page 3Regardless of the extent of the work done, the Applicant simply did not feel that this was important information to provide to any doctor she was seeing (Minutes of Hearing and Summary of Evidence, 10-22-2020, page 4, lines 15-16, EAMS Doc ID 73449917), and it is on this basis that the last-minute revelation of limited additional work duties, in my opinion, does not cause Dr. Vyas's report to become non-substantial medical evidence.

Dr. Vyas found no causal link between work and MRI findings due to short employment and symptom timing

Favours Defendant prevailed

Supported denial of industrial causation and benefits

From the decision · page 4Finally, Applicant's last basis for finding Dr. Vyas's report is not substantial is that he failed to provide an explanation for the objective findings on the MRIs performed on this 37 year old Applicant. Applicant's Petition for Reconsideration specifically refers to the MRI of Applicant's lumbar spine and right shoulder. Applicant's lumbar spine MRI shows disc protrusions from L3 to S1 all less than 3mm. Although the MRIs themselves were not offered into evidence, from the review of the MRIs done by Dr. Khan (Applicant's Exhibit 2, pages 12, EAMS Doc ID 33851335), the report only shows mild stenosis. As for Applicant's right shoulder MRI, both doctor's indicate that there is evidence of findings consistent with posterior glenoid labrum tear. Dr. Vyas opined that the Applicant did not work long enough (15 days before commencement of symptomology) to accumulate any significant trauma. (Defendant's Exhibit B, page 12. CAUSATION paragraph, EAMS Doc ID 33819679). The doctor reviewed the MRIs and simply found insufficient causal link between Applicant's work and the objective findings. There is no requirement that the doctor provide any explanation as to what might have caused the objective findings; he needs only to address whether they are industrially related or not.

Dr. Vyas opined insufficient length of employment to substantiate cumulative trauma claim and found no causal link between work and objective findings on MRIs.

Dr. Vyas reviewed medical records and MRIs and concluded no industrial causation due to short employment and symptom timing.

From the decision · page 4Finally, Applicant's last basis for finding Dr. Vyas's report is not substantial is that he failed to provide an explanation for the objective findings on the MRIs performed on this 37 year old Applicant. Applicant's Petition for Reconsideration specifically refers to the MRI of Applicant's lumbar spine and right shoulder. Applicant's lumbar spine MRI shows disc protrusions from L3 to S1 all less than 3mm. Although the MRIs themselves were not offered into evidence, from the review of the MRIs done by Dr. Khan (Applicant's Exhibit 2, pages 12, EAMS Doc ID 33851335), the report only shows mild stenosis. As for Applicant's right shoulder MRI, both doctor's indicate that there is evidence of findings consistent with posterior glenoid labrum tear. Dr. Vyas opined that the Applicant did not work long enough (15 days before commencement of symptomology) to accumulate any significant trauma. (Defendant's Exhibit B, page 12. CAUSATION paragraph, EAMS Doc ID 33819679). The doctor reviewed the MRIs and simply found insufficient causal link between Applicant's work and the objective findings. There is no requirement that the doctor provide any explanation as to what might have caused the objective findings; he needs only to address whether they are industrially related or not.

Dr. Khan's reports did not indicate extra job duties beyond initial reports and did not support cumulative trauma claim.

Dr. Khan's reports lacked mention of additional job duties and did not support cumulative trauma claim.

From the decision · page 2Applicant started treating with Dr. Zareena Khan on July 23, 2018 but failed to inform the doctor about any extra duties she did regarding packing shoes. (Applicant's Exhibit 1, page 1, History of Injury and Job Description paragraphs, EAMS Doc ID 33851337) Dr. Zareena Khan's final report also fails to indicate any extra job duties beyond those indicated in the doctor's initial report. (Applicant's Exhibit 2, pages 1-2, Job Description and History of Injury paragraphs, EAMS Doc ID 33851335) Applicant was eventually seen by a panel qualified medical evaluator, Dr. Shail Vyas, on December 26, 2019. (Defendant's Exhibit B, EAMS Doc ID 33819679). The Applicant testified that she did not tell the doctor about her working on the production line for boxing shoes because she did not think that this was important information to give to the doctor. (Minutes of Hearing and Summary of Evidence, 10-22-2020, page 4, lines 15-16, EAMS Doc ID 73449917)

Labor Code Section 3202

Labor Code Section 3202 - Labor Code shall be liberally construed to extend benefits to injured workers

Used in interpretation and application of Labor Code, not in determination of facts and credibility

From the decision · page 4Finally, Applicant raises Labor Code § 3202, which provides that the Labor Code shall be liberally construed by the courts with the purpose of extending benefits for the protection of persons injured in the course of their employment. This

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312

Credibility determinations given great weight when WCJ observes witness demeanor (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312)

WCJ credibility determinations upheld as no substantial evidence to reject them

From the decision · page 1We have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witnesses. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determinations. (Id.)

Applicant's credibility found lacking by WCJ and WCAB

From the decision · page 5section is utilized in the interpretation and application of the Labor Code, not in the determination of facts and credibility. California's workers compensation system is a benefits delivery system, but only for workers that have sustained an injury in the course and scope of their employment. The determination of whether or not an individual has sustained an injury is left to the courts to determine based on the evidence presented. I did not find Applicant to be a credible witness and the qualified medical examiner, Dr. Vyas, indicated that there was insufficient length of employment to have substantiated a cumulative trauma claim. Even if Labor Code § 3202 was somehow applicable in this matter, Applicant would still have failed to meet her burden of proof.