ADJ12990177 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; WCJ's Findings and Order rescinded; case returned to WCJ for further proceedings and new decision.

Applicant sought reconsideration of the WCJ's Findings and Order denying injury AOE/COE; the WCJ had found no injury arising out of employment to neck, shoulders, back, and knee. The WCJ recommended denial of reconsideration. The Appeals Board granted reconsideration, rescinded the WCJ's order, and returned the matter for further proceedings.

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This docket was decided more than once. Shown here is the latest released decision; we also hold May 5, 2021.

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/COERemandedneck · bilateral shoulders · back · left knee

The WCJ's denial of injury AOE/COE was based on lack of substantial medical evidence, as the PTP and secondary treating physician reports did not adequately address causation. The Appeals Board found insufficient evidence and ordered further medical-legal evaluation to properly litigate the issue.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on February 16, 2021, wherein the WCJ found that applicant did not sustain an injury arising out of and in the course of employment (AOE/COE) to his neck, bilateral shoulders, back, and left knee. In the Opinion on Decision, the WCJ stated that absent a finding of injury AOE/COE, the post termination defense issue was moot. (F&O, p. 7.)

The facts that decided it

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

Reports from PTP Dr. Green did not address causation of orthopedic symptoms.

Favours Defendant prevailed

Lack of substantial medical evidence to support injury AOE/COE denial.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

Reports from secondary treating physician Dr. Komberg stated cumulative trauma injury but did not comply with Escobedo requirements.

Favours Defendant prevailed

Did not constitute substantial evidence to support injury AOE/COE denial.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

Applicant's trial testimony about symptoms and reporting to supervisors prior to termination.

Favours Applicant prevailed

Provided some support for injury claim but insufficient alone to establish injury AOE/COE.

From the decision · page 2The parties proceeded to trial on July 27, 2020. (Minutes of Hearing and Summary of Evidence (MOH/SOE), July 27, 2020.) The matter was continued to October 1, 2020. Applicant testified about his various neck, back, shoulder, and left knee symptoms, and he testified that he told his supervisors about those symptoms prior to January 29, 2020, the day his employment was terminated. (MOH/SOE, October 1, 2020, pp. 2 - 9.) The October 1, 2020 trial was continued to December 10, 2020, for further testimony and the matter was submitted at that time. (MOH/SOE, December 10, 2020.) The issue submitted for decision was injury AOE/COE, with defendant asserting the post-termination defense. (MOH/SOE, July 27, 2020.)

No medical-legal evaluation was obtained to determine injury AOE/COE.

Favours Applicant prevailed

Insufficient evidence in record to decide injury AOE/COE issue; Appeals Board ordered further medical-legal evaluation.

From the decision · page 4determine that a claim is or is not barred by the post termination defense, an initial finding of injury AOE/COE must be made. In turn, it is appropriate when there is a disputed injury claim, to have applicant undergo a medical-legal evaluation. Otherwise stated, if the injury claim is promptly accepted, there is no necessity for a medical-legal report, but if the claim is denied it is appropriate that a medical-legal report be obtained. (Del Rio v. Quality Hardware (1993) 58 Cal.Comp.Cases 147 (Appeals Board en banc).) Here, without a medical-legal examination/report, there is insufficient evidence in the record upon which the issue of injury AOE/COE may be determined.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

PTPRejected

Did not address the cause of applicant's orthopedic symptoms in reports admitted into evidence.

Reports did not comply with Escobedo requirements and did not constitute substantial evidence.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

secondary_treaterRejected

Stated applicant sustained cumulative trauma injury during employment but did not comply with Escobedo requirements and did not constitute substantial evidence.

Reports did not comply with Escobedo requirements and did not constitute substantial evidence.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

The rules the panel named

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

Lab. Code, 5952(d)

An award, order, or decision of the Appeals Board must be supported by substantial evidence.

The WCJ's denial was based on lack of substantial medical evidence.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

A medical opinion must be based on pertinent facts, an adequate examination and an accurate history, and must set forth reasoning in support of its conclusions.

The reports from PTP and secondary treating physician did not meet these requirements and were rejected as substantial evidence.

From the decision · page 2An award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) To be substantial evidence a medical opinion must be based on pertinent facts, on an adequate examination and an accurate history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Review of the trial record indicates that PTP Dr. Green did not address the cause of applicant's orthopedic symptoms in any of his reports admitted into evidence. (See App. Exhs. 1, 2, and 3.) In his initial report Dr. Komberg stated:

Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913]

A finding of cumulative injury must be based on expert medical opinion.

Applicant's trial testimony alone was not substantial evidence of cumulative injury AOE/COE.

From the decision · page 3The reports from Dr. Green and Dr. Komberg do not comply with the requirements as described in Escobedo v. Marshalls, supra, and do not constitute substantial evidence. Also, a finding that an applicant sustained a cumulative injury must be based on an expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) Where issues exist regarding diagnosis, prognosis or treatment that is beyond the bounds of ordinary knowledge, medical proof is required. (See Bstandig v. Worker's Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 996 [42 Cal.Comp.Cases 114].) Thus, applicant's trial testimony is not substantial evidence as to the issue of whether applicant sustained a cumulative injury AOE/COE.

Bstandig v. Worker's Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 996 [42 Cal.Comp.Cases 114]

Medical proof is required where issues regarding diagnosis, prognosis or treatment are beyond ordinary knowledge.

Applicant's trial testimony was insufficient to establish injury AOE/COE without medical proof.

From the decision · page 3The reports from Dr. Green and Dr. Komberg do not comply with the requirements as described in Escobedo v. Marshalls, supra, and do not constitute substantial evidence. Also, a finding that an applicant sustained a cumulative injury must be based on an expert medical opinion. (See Insurance Company of North America v. Workers' Comp. Appeals Bd. (Kemp) (1981) 122 Cal.App.3d 905 [46 Cal.Comp.Cases 913].) Where issues exist regarding diagnosis, prognosis or treatment that is beyond the bounds of ordinary knowledge, medical proof is required. (See Bstandig v. Worker's Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 996 [42 Cal.Comp.Cases 114].) Thus, applicant's trial testimony is not substantial evidence as to the issue of whether applicant sustained a cumulative injury AOE/COE.

Del Rio v. Quality Hardware (1993) 58 Cal.Comp.Cases 147 (Appeals Board en banc)

If the injury claim is denied, it is appropriate to obtain a medical-legal report to determine injury AOE/COE.

The Appeals Board ordered further medical-legal evaluation to properly litigate the injury AOE/COE issue.

From the decision · page 4determine that a claim is or is not barred by the post termination defense, an initial finding of injury AOE/COE must be made. In turn, it is appropriate when there is a disputed injury claim, to have applicant undergo a medical-legal evaluation. Otherwise stated, if the injury claim is promptly accepted, there is no necessity for a medical-legal report, but if the claim is denied it is appropriate that a medical-legal report be obtained. (Del Rio v. Quality Hardware (1993) 58 Cal.Comp.Cases 147 (Appeals Board en banc).) Here, without a medical-legal examination/report, there is insufficient evidence in the record upon which the issue of injury AOE/COE may be determined.

ADJ12990177 · May 5, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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