ADJ12641877 — California WCAB decision

What the panel ordered

The WCJ's decision was rescinded and the matter was returned to the trial level for further proceedings and development of the record.

Defendant sought reconsideration of the WCJ's Joint Findings of Fact of January 27, 2021, which found industrial injury to multiple body parts in two cases, specific injury case ADJ12641877 and cumulative injury case ADJ12754152.

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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/COERemandedlumbar spine · cervical spine · right shoulder · right wrist · knees

The WCJ found industrial injury to multiple body parts, but the WCAB panel found no substantial evidence supporting injury to the spine, shoulder, wrist or knees from the specific incident and found the WCJ erred in discounting the QME's report on cumulative injury.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Fact of January 27, 2021, wherein it was found that while employed as a retail associate on November 18, 2018 (ADJ12641877) and during a cumulative period ending November 20, 2018 (ADJ12754152), applicant sustained industrial injury to her lumbar spine, cervical spine, right shoulder, right wrist and knees. Applicant had alleged injuries to these body parts only in the cumulative injury case (ADJ12754152). In the specific injury case (ADJ12641877), the Application for Adjudication of Claim claimed injury only to the "nervous system[,] stress[,] psyche[, and in the form of] insomnia." By the time of trial, applicant claimed only injury to the psyche. (WCAB Rule 10517, Cal. Code Regs., tit. 8, § 10517.) Nevertheless, the WCJ never made any findings regarding the alleged psyche injury, and found injury in both cases to the body parts alleged only in the cumulative injury case. The WCJ stated in his decision that he amended the pleadings in the specific injury case to conform to the evidence purportedly presented.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant alleged injury to psyche only in the specific injury case, with no psychiatric reports or findings supporting it.

Favours Defendant prevailed

This undermined the WCJ's finding of injury to spine, shoulder, wrist, and knees from the specific incident.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Fact of January 27, 2021, wherein it was found that while employed as a retail associate on November 18, 2018 (ADJ12641877) and during a cumulative period ending November 20, 2018 (ADJ12754152), applicant sustained industrial injury to her lumbar spine, cervical spine, right shoulder, right wrist and knees. Applicant had alleged injuries to these body parts only in the cumulative injury case (ADJ12754152). In the specific injury case (ADJ12641877), the Application for Adjudication of Claim claimed injury only to the "nervous system[,] stress[,] psyche[, and in the form of] insomnia." By the time of trial, applicant claimed only injury to the psyche. (WCAB Rule 10517, Cal. Code Regs., tit. 8, § 10517.) Nevertheless, the WCJ never made any findings regarding the alleged psyche injury, and found injury in both cases to the body parts alleged only in the cumulative injury case. The WCJ stated in his decision that he amended the pleadings in the specific injury case to conform to the evidence purportedly presented.

Dr. Sobeck's QME report found no industrial injury and noted normal physical examination and only subjective complaints.

Favours Defendant prevailed

The WCJ erred in discounting this report, which is required to establish medical causation in cumulative injury cases.

From the decision · page 3Applicant was then evaluated by panel qualified medical evaluator orthopedist Gregg R. Sobeck, M.D., only with regard to the cumulative injury claim, as applicant alleged orthopedic injury on with regard to that claim. With regard to the onset of applicant's symptoms, Dr. Sobeck wrote:

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony about being hit in the face by a customer and developing anxiety and stress, but no psychiatric reports or medical evidence supporting psyche injury.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Fact of January 27, 2021, wherein it was found that while employed as a retail associate on November 18, 2018 (ADJ12641877) and during a cumulative period ending November 20, 2018 (ADJ12754152), applicant sustained industrial injury to her lumbar spine, cervical spine, right shoulder, right wrist and knees. Applicant had alleged injuries to these body parts only in the cumulative injury case (ADJ12754152). In the specific injury case (ADJ12641877), the Application for Adjudication of Claim claimed injury only to the "nervous system[,] stress[,] psyche[, and in the form of] insomnia." By the time of trial, applicant claimed only injury to the psyche. (WCAB Rule 10517, Cal. Code Regs., tit. 8, § 10517.) Nevertheless, the WCJ never made any findings regarding the alleged psyche injury, and found injury in both cases to the body parts alleged only in the cumulative injury case. The WCJ stated in his decision that he amended the pleadings in the specific injury case to conform to the evidence purportedly presented.

Medical recordsfavours Defendant prevailed

Medical records and reports showing no objective findings supporting injury to spine, shoulder, wrist or knees from the specific incident on November 18, 2018.

From the decision · page 4While the WCJ states in his Report that he "based [his] findings in this case on the medical report of Dr. Haronian wherein he opined that applicant developed pain to her back, neck, right shoulder, right wrist, and knees due to the incident that occurred... on 11/18/18" (Report at p. 6), we have perused the medical record and there is no evidence that applicant sustained injury to the spine, shoulder, wrist or knees as a result of being hit in the face. In finding specific injury to the spine, shoulder, wrist, and knees, the WCJ may have misinterpreted Dr. Haronian's statement that "the patient has sustained injuries to multiple body parts due to her specific and continuous trauma injuries." This statement does not ascribe injury to the spine, shoulder, wrist or knees specifically to the November 18, 2018 incident. It appears from the totality of his reports that Dr. Haronian ascribed injury to these body parts only to the cumulative injury.

ADJ12641877 · April 19, 2021

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The facts that decided it

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