ADJ12322911 · November 29, 2021

Applicant's testimony was found not credible and insufficient to prove injury AOE/COE; PQME Dr. Amory's medical-legal report found no injury AOE/COE; WCJ's credibility determination was given great weight.

From the decision · page 4Applicant's testimony needs to be found credible, and it is the applicant who must sustain her burden of proof by a preponderance of the evidence. Labor Code § 3202.5 provides in pertinent part that all parties, including the applicant, must meet her evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. A Trier of Fact must weigh all the evidence, including testimony and its credibility, to determine whether there is a sufficient record based upon which a finding of injury could be reached. Garza v. WCAB (1970) 3 Cal.3d 312.

Applicant provided false and/or inaccurate history to several doctors and did not mention prior injuries or car accident.

Favours Defendant prevailed

This undermined applicant's credibility and supported finding of no injury AOE/COE.

From the decision · page 4Applicant's testimony was found to be insufficient and not credible enough so as to form a basis for a finding of her having had an injury at Little Caesar's, as it appears her injury is and was at Burger King. It is unclear why she would leave this and the car accident and all her prior injuries out of her history when talking to the doctors in her 2021 case as well as the PQME in the pending case now and the doctors at US Healthworks. When she did seek treatment, she did not mention the other injury she was concurrently treating for. Therefore, I, like the PQME, did not find her credible and found no injury.

PQME Dr. Amory reviewed all medical records and concluded no injury AOE/COE related to employment at Little Caesars.

Favours Defendant prevailed

Medical-legal report was the basis for denial of claim and supported WCJ's findings.

From the decision · page 3After trial, it was concluded that Applicant provided a false and/or inaccurate history to several doctors in the case and that she did not sustain her burden of proof for a finding of injury AOE/COE. Applicant contends in her Petition for Reconsideration that the report of PQME Dr. Amory is insubstantial medical evidence; however, Defendant pointed out correctly within the Answer that Dr. Amory did in fact review the records which is why he found no injury and was the most substantial and comprehensive medical-legal report, and was the basis (medically) for the conclusion of no injury to be made.

Reviewed records and concluded no injury AOE/COE related to employment at Little Caesars; issued supplemental report confirming opinion.

PQME reviewed all records and found no injury; report was the basis for denial of claim.

From the decision · page 3After trial, it was concluded that Applicant provided a false and/or inaccurate history to several doctors in the case and that she did not sustain her burden of proof for a finding of injury AOE/COE. Applicant contends in her Petition for Reconsideration that the report of PQME Dr. Amory is insubstantial medical evidence; however, Defendant pointed out correctly within the Answer that Dr. Amory did in fact review the records which is why he found no injury and was the most substantial and comprehensive medical-legal report, and was the basis (medically) for the conclusion of no injury to be made.

Labor Code 3202.5

Preponderance of the evidence burden of proof on applicant for injury AOE/COE

Applicant must sustain burden of proof by preponderance of evidence; WCJ must weigh credibility and evidence to determine injury.

From the decision · page 4Applicant's testimony needs to be found credible, and it is the applicant who must sustain her burden of proof by a preponderance of the evidence. Labor Code § 3202.5 provides in pertinent part that all parties, including the applicant, must meet her evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. A Trier of Fact must weigh all the evidence, including testimony and its credibility, to determine whether there is a sufficient record based upon which a finding of injury could be reached. Garza v. WCAB (1970) 3 Cal.3d 312.

Garza v. WCAB (1970) 3 Cal.3d 312

Credibility determinations by WCJ given great weight when based on witness demeanor

WCAB gave great weight to WCJ's credibility findings as WCJ observed witness demeanor; no substantial evidence to reject credibility determination.

From the decision · page 1Nevertheless, we deny reconsideration on the merits for the reasons stated in the Report. In addition, we have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd.

Applicant's testimony found not credible and somewhat self-serving; inconsistent histories given to doctors; failure to mention prior injuries and car accident; no witnesses testified on applicant's behalf.

From the decision · page 4At the first trial, applicant provided testimony at trial on 4/21/21 and 7/6/21, which the undersigned WCJ found not to be credible and somewhat self-serving in light of the medical reports and records review. Garza v. WCAB (1970) 3 Cal.3d 312. For example, applicant went to treat at US Healthworks about her Burger King (concurrent) claim, but she gave a different history to her current doctors about her prior claims, in relation to the new 2021 injury at a subsequent employer. When she went to US Healthworks, she did not report the car accident of 2/2018 which I also found applicant to be "down playing" at trial. The applicant could identify and locate multiple witnesses, including her supervisor, but no witnesses testified on her behalf.