ADJ11562102 · January 17, 2023

The WCJ found the opinion of QME Dr. Yip more persuasive than that of prior QME Dr. Shipp, based on applicant's consistent testimony that she did not smell noxious odors on the bus, which is critical to establishing industrial injury for acquired odor disorder. The WCJ's findings were supported by substantial evidence and proper procedural rules regarding evidence admission were followed.

From the decision · page 1Applicant, who is representing herself, seeks reconsideration of a workers' compensation administrative law judge's Findings of Fact, Award1 and Orders of October 26, 2022, wherein it was found that applicant did not sustain industrial injury in the form of acquired odor disorder while employed as a bus operator on September 19, 2018. The WCJ thus issued an order that the applicant take nothing by way of her workers' compensation claim.

Applicant testified consistently that she did not smell noxious odors on the bus on the date of injury.

Favours Defendant prevailed

This testimony contradicted the history required to establish industrial injury for acquired odor disorder and supported Dr. Yip's opinion denying injury.

From the decision · page 6Applicant testified in her deposition of 8/17/20 "No. The scary part is I didn't smell anything, and I just couldn't breathe all of a sudden. I actually smelled the exhaust when I got remember - I actually remember smelling the exhaust fumes when I got off the bus." WCAB-X pg. 65 lines 24-25 and pg. 66 lines 1- 3.

Dr. Yip opined that the applicant did not sustain an industrial injury because she did not smell noxious odors on the bus and had no evidence of overexposure to respiratory irritants, thus no work-related acquired odor hypersensitivity syndrome.

Dr. Yip's opinion was found more persuasive by the WCJ due to consistency with applicant's testimony and thorough review of medical and non-medical evidence.

From the decision · page 2With regard to the WCJ's following the conclusions of Dr. Yip over prior qualified medical evaluator environmental medicine specialist Miriam Shipp, M.D., the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) Here, the WCJ carefully explained why he found Dr. Yip's conclusions more persuasive. As noted by the WCJ in the Report, Dr. Yip's history and conclusions were more consistent with the applicant's deposition and trial testimony that applicant did not smell any noxious odors prior to the onset of her symptoms.

Dr. Shipp initially opined that the applicant sustained industrial injury due to odor sensitivity from exposure to noxious odors on the bus, but acknowledged her opinion might change if the applicant did not smell noxious odors.

Dr. Shipp's opinion was considered but found less persuasive due to applicant's testimony contradicting the history of smelling noxious odors.

From the decision · page 5Initially Applicant was evaluated by Dr. Shipp as the QME rpt 8-1-19 (Apps-2). Dr. Shipp's history was Applicant smelled a bad odor on the bus and then began having symptoms Apps-2 pg. 3 "History of Injury" Dr. Shipp opined the Applicant had sustained odor sensitivity driving her bus on 9/19/18 due to this history in part at pg. 12 "Causation".

Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473

All evidence must be admitted into the record to be considered; evidence not disclosed at mandatory settlement conference cannot be considered.

The September 20, 2018 emergency room report was not disclosed or admitted, so it was not considered.

From the decision · page 1We will deny the applicant's Petition for the reasons stated by the WCJ in the Report, which we adopt, incorporate and quote below. Applicant argues that the WCJ did not take into account a September 20, 2018 emergency room report which purportedly showed increased carbon monoxide levels. All decisions of the WCAB must be based on evidence admitted into the record. (Hamilton v. Lockheed Corp. (2001) 66 Cal.Comp.Cases 473, 476 [Appeals Bd. en banc].) All evidence sought to be admitted into the record must be disclosed at the mandatory settlement conference. (Lab. Code, § 5502, subd. (d)(3).) Here the September 20, 2018 emergency room record was not disclosed on the pretrial conference statement, nor did applicant attempt to introduce this document into the evidentiary record at trial. Accordingly, it cannot be considered.

Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627

The relevant and considered opinion of one physician, though inconsistent with others, may constitute substantial evidence; the WCJ may choose among conflicting medical reports and rely on the most persuasive.

The WCJ found Dr. Yip's opinion more persuasive than Dr. Shipp's and relied on it to deny industrial injury.

From the decision · page 2With regard to the WCJ's following the conclusions of Dr. Yip over prior qualified medical evaluator environmental medicine specialist Miriam Shipp, M.D., the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 639 [35 Cal.Comp.Cases 16].) The WCJ is empowered to choose among conflicting medical reports and rely on those deemed most persuasive. (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476, 479 [33 Cal.Comp.Cases 221].) Here, the WCJ carefully explained why he found Dr. Yip's conclusions more persuasive. As noted by the WCJ in the Report, Dr. Yip's history and conclusions were more consistent with the applicant's deposition and trial testimony that applicant did not smell any noxious odors prior to the onset of her symptoms.

Applicant's consistent testimony that she did not smell noxious odors on the bus on the date of injury.

From the decision · page 6Applicant testified in her deposition of 8/17/20 "No. The scary part is I didn't smell anything, and I just couldn't breathe all of a sudden. I actually smelled the exhaust when I got remember - I actually remember smelling the exhaust fumes when I got off the bus." WCAB-X pg. 65 lines 24-25 and pg. 66 lines 1- 3.