What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by applicant and denied by the WCAB panel after review of the WCJ report and opinion.
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.
Applicant did not meet burden of proof through substantial medical evidence that injury was industrially caused; AME opinion was relied upon and found persuasive; applicant's credibility was questioned; no objective findings corroborated injury.
From the decision · page 9While it is clear the applicant is suffering, the link between a workplace incident and any injury has not been credibly established. The medical reports from the date of injury do not have any objective findings, the investigative statements do not corroborate smoke, especially to the point of being unable to navigate ones surroundings.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Greenberg's AME report found no industrial causation for applicant's respiratory symptoms, headaches, and memory disturbance.
Favours Defendant prevailed
The WCJ and WCAB panel relied on this substantial medical evidence to deny the claim.
From the decision · page 9Dr. Greenberg noted "Lab work and a chest x-ray on 2/14/22 were normal" (Exhibit B). Dr. Greenberg further opined "without any substantial evidence, I cannot state within reasonable medical probability that the applicant's respiratory symptoms are industrial in causation. the applicant's shortness of breath (dyspnea) is non-industrial in causation. I can also not state within reasonable medical probability that the applicant's headaches and memory disturbance is due to smoke exposure; these diagnoses are also non-industrial in causation." (Exhibit B pg 4).
Applicant's testimony was inconsistent and lacked credibility, with no corroboration of smoke exposure or objective findings.
Favours Defendant prevailed
This undermined the applicant's burden of proof and supported denial of the claim.
From the decision · page 7The undersigned has significant concerns regarding applicants' credibility while testifying including the fluctuation in her tone and voice when testifying to favorable aspects versus when she would testify regarding her complaints. Additional concerns regarding her testimony that the room filled with so much smoke that she was barely able to see and yet no alarm went off and no one else was able to substantiate. Notably, there were no objective findings that corroborate applicant's alleged injury.
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.
Dr. Greenberg deferred causation pending investigation and later found no industrial causation for respiratory symptoms, headaches, and memory disturbance; symptoms were non-industrial in causation.
Opinion was substantial medical evidence and was relied upon by the WCJ and WCAB panel; no evidence to discredit the AME's opinion.
From the decision · page 8RELEVANT FACTS On February 7, 2022, applicant alleged injury to her respiratory system after smoke allegedly filled up a patient lounge that she went to during her break. On March 21, 2022, Applicant obtained representation and filed a workers compensation claim. On May 3, 2022, the parties agreed to utilize Dr. Andrew McClintock Greenberg as an agreed medical examiner (hereinafter AME). Dr. Greenberg evaluated the applicant and issued the September 28, 2022 report (Exhibit A). Dr. Greenberg deferred causation pending an investigation and statements from coworkers. On June 14, 2023, Dr. Greenberg issued a reporting finding no industrial causation. On September 7, 2023, Defendant filed a declaration of readiness to proceed. There was no objection. On November 7, 2023, while applicant was represented, the mater was set for trial on January 17, 2024 in front of Judge Miller. Discovery was closed. On December 4, 2023, Applicant dismissed her counsel. On December 18, 2023, applicant requested the trial be taken off calendar for further discovery and to obtain new counsel.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 5705; South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291
The employee bears the initial burden of proving injury arising out of and in the course of employment by a preponderance of the evidence.
Applied to assess burden of proof for injury causation.
From the decision · page 1The employee bears the initial burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (Lab. Code, § 5705; South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) Moreover, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) Medical evidence is
Lab. Code, 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627
Decisions by the Appeals Board must be supported by substantial evidence.
Applied to evaluate the sufficiency of medical evidence and credibility determinations.
From the decision · page 1The employee bears the initial burden of proving injury arising out of and in the course of employment (AOE/COE) by a preponderance of the evidence. (Lab. Code, § 5705; South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3202.5, 3600(a).) Moreover, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) Medical evidence is
Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775; Siqueiros v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 150 (writ denied)
The opinions of an AME are entitled to substantial weight absent a showing that they are based on an incorrect factual history or legal theory, or are otherwise unpersuasive in light of the entire record.
Applied to give substantial weight to the AME's opinion in this case.
From the decision · page 6The opinions of an AME are entitled to substantial weight absent a showing that they are based on an incorrect factual history or legal theory, or are otherwise unpersuasive in light of the entire record. (See, e.g., Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]; Siqueiros v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 150 (writ denied).)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credibility was questioned due to inconsistent testimony and lack of corroboration of smoke exposure; no objective findings supported injury.
From the decision · page 7The undersigned has significant concerns regarding applicants' credibility while testifying including the fluctuation in her tone and voice when testifying to favorable aspects versus when she would testify regarding her complaints. Additional concerns regarding her testimony that the room filled with so much smoke that she was barely able to see and yet no alarm went off and no one else was able to substantiate. Notably, there were no objective findings that corroborate applicant's alleged injury.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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