ADJ8166020 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; prior Joint Findings & Orders rescinded; new Findings of Fact substituted; matter remanded to WCJ for further proceedings.

Petition for Reconsideration granted by the WCAB panel, rescinding the prior Joint Findings & Orders and remanding for further proceedings.

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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 prevailedback · right hand · right wrist · left hand · left wrist

The WCAB found substantial evidence in the AME Dr. Danzig's opinion that applicant sustained injuries on May 2, 2008, November 24, 2011, and during the period April 26, 2011 to April 26, 2012, arising out of and in the course of employment, overruling the WCJ's contrary finding.

From the decision · page 8FINDINGS OF FACT 1. (ADJ8166020) the applicant, while employed on May 2, 2008, as a certified nursing assistant, at Sylmar, California, by Ember Care, whose workers' compensation insurance carrier was Technology Insurance Company, administered by Majestic (currently AmTrust), sustained injury arising out of and occurring in the course of employment to her back, but not to her arms, fingers or shoulders. 2. (ADJ8371382) the applicant, while employed on November 24, 2011, as a certified nursing assistant, at El Segundo, California, by Life House Holdings LLC, whose workers' compensation insurance carrier was United States Fire Insurance Company, administered by Zenith, sustained injury arising out of and occurring in the course of employment to her right hand and wrist, but not to her back. 3. (ADJ8371384) the applicant, while employed during the period commencing April 26, 2011 through April 26, 2012, as a certified nursing assistant, at El Segundo, California, by Life House Holdings LLC, whose workers' compensation insurance carrier was United States Fire Insurance Company, administered by Zenith, sustained injury arising out of and occurring in the course of employment to her right wrist and hand, left wrist and hand, and low back. 4. The issue of whether lien claimants are entitled to recovery on their liens is deferred.

The rules the panel named

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

Labor Code sections 5705 and 3202.5

Burden of proof rests on the party holding the affirmative of the issue; preponderance of the evidence standard applies.

Lien claimants must prove their claims are industrial by preponderance of evidence.

From the decision · page 6Pursuant to section 5705, "The burden of proof rests upon the party or lien claimant holding the affirmative of the issue." (Lab. Code, § 5705.) "All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence." (Lab. Code § 3202.5) "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292].) When applicant was injured on May 2, 2008, she reported the injury to her supervisor and made a report and was provided treatment through the company. Applicant was examined by AME Dr. Danzig who found that applicant sustained injuries caused by the incident on May 2, 2008. Specifically, in his report of June 14, 2014, Dr. Danzig stated that "it is medically probable that approximately ninety percent of the patient's disability for the lumbar spine was caused as a direct result of the patient's cumulative trauma injury which the patient sustained during the course of her employment with Lighthouse Holdings and approximately ten percent to the specific injury of May 2, 2008."

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, with reasoning support.

WCAB found Dr. Danzig's opinion met the substantial evidence standard despite WCJ's contrary view.

From the decision · page 7Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) The WCJ may not isolate portions of a physician's opinion to support a specific result, but must consider the physician's reports and testimony as a whole. (See Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310].) Here, we discern no substantive difference between the supposed flaw in Dr. Danzig's opinion described by the WCJ as "not stated in terms of reasonable medical probability" and Dr.

ADJ8166020 · December 9, 2024

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