ADJ16642865 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; August 7, 2024 F&O affirmed and amended to clarify injury AOE/COE to cervical, thoracic, and lumbar spine; other body parts deferred.

Defendant sought reconsideration of the August 7, 2024 Findings of Fact and Order Taking Off Calendar (F&O) regarding injury AOE/COE; WCJ prepared a Report and Recommendation to deny the petition; the Appeals Board granted reconsideration and issued a Decision After Reconsideration affirming the F&O with amendment to specify injury to cervical, thoracic, and lumbar spine.

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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/COEApplicant prevailedcervical spine · thoracic spine · lumbar spine

Applicant was found to be on a paid work break at the time of injury, supported by credible testimony and evidence of purchases; medical evidence showed post-traumatic aggravation and sprain/strain to cervical, thoracic, and lumbar spine; injury to these body parts was found AOE/COE.

From the decision · page 6In the instant case, applicant left defendant's premises to take an unrestricted break. This was an act of personal convenience that should have been reasonably contemplated by defendant. With respect to whether the break was paid or unpaid, we note that in his Opinion on Decision (OOD), the WCJ indicated that based upon the "totality of the evidence," including applicant's credible testimony, employer testimony, and evidence pertaining to food and drink purchases made by applicant (including the timing of those purchases), it was apparent that applicant was on a paid break. (OOD, p. 3.) There were two purchases made August 1, 2022, and both appeared "relatively similar in price. (Id.) "[N]o singular purchase appeared to be a "more expensive" lunch purchase. (Id.) The time of day when the injury occurred also appeared to be "more compatible with a normal afternoon break." (Id.) In light of the foregoing, we agree that at the time of injury, applicant was on a paid work break rather than an unpaid lunch.

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.

QMERelied upon · orthopedic

Diagnosed post-traumatic aggravation of cervical spine strain, thoracic spine sprain/strain, lumbar spine strain with multilevel degenerative changes; deferred causation and impairment findings but noted industrial causation if applicant was on a paid break at injury time; noted objective disability factors including tenderness, spasm, decreased range of motion, gait problems, and upper extremity weakness.

Medical evidence supported injury AOE/COE to cervical, thoracic, and lumbar spine; causation linked to paid break status at injury time.

From the decision · page 2FACTS Applicant claims to have sustained an injury arising out of and in the course of employment to the musculoskeletal system (chest/ribs), back, head, and psyche while employed on August 1, 2022 as a motion picture analyst for defendant. Applicant was apparently physically assaulted by a stranger around 3:30 p.m. while taking a break at a business across the street from his employer. Defendant contends applicant was on an off premises unpaid lunch break at the time of the alleged injury and therefore his injury was not AOE/COE. Applicant contends he was on a paid work break. Dr. Sam Bakshian was ultimately selected as the orthopedic panel Qualified Medical Evaluator (QME) and evaluated the applicant on November 11, 2023. In his January 17, 2023 report, Dr. Bakshian deferred his findings on causation and impairment but noted that "if the trier of fact were to conclude as true and factual per the applicant's history that he was not at lunch, rather on a break at 3:30 pm in the afternoon, then industrial causation would be indicated." (Exhibit 1, QME report of Dr. Bakshian, January 17, 2023, p. 17.) In the same report, Dr. Bakshian diagnosed applicant with the following: 1. Post-traumatic aggravation, cervical spine strain with history of prior ACDF C-3-C4

ADJ16642865 · October 24, 2024

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

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