ADJ8309831 · November 23, 2021

The WCJ's findings on injury AOE/COE were not supported by substantial evidence due to inconsistent and speculative medical opinions; the WCAB rescinded the prior decision and remanded for further proceedings with a new medical-legal report.

From the decision · page 8The medical reports in the trial record are contradictory and confusing. As explained above, the doctors' opinions are not based on adequate information, and they appear to be the result of the physicians' speculation, conjecture, or guess. Again, based on our review of the trial record, it is clear that the record does not contain substantial evidence upon which the issue of injury AOE/COE can be made.4

Medical opinions on injury AOE/COE were inconsistent, speculative, and not based on adequate information

Favours Defendant prevailed

Led to finding that there was no substantial evidence to support injury AOE/COE

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint

Applicant's trial testimony was credible and inconsistent with prior deposition testimony

Favours Applicant prevailed

Credibility finding affected weight of medical opinions and evidence

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint

Apportioned 7.5% of disability to work at San Diego Zoological Society and 7.5% to Salvation Army/Kroc Center; 85% due to prior injuries and degenerative changes.

Based on examination, history, and medical record review from 1995 to 2013.

From the decision · page 4orthopedic qualified medical examiner (QME) Beth Bathgate, M.D., evaluated applicant regarding

Attributed 25% of current disability to specific injuries and 15% to cumulative trauma; later apportioned 5% to Wild Animal Park and 10% to Salvation Army.

Based on medical examination and deposition testimony.

From the decision · page 2The trial/medical record, relevant to the issues addressed herein, is summarized as follows: Applicant was first seen by Richard Greenfield, M.D., on November 14, 2002. (Joint Exh. 21, Dr. Greenfield, November 14, 2002.) Dr. Greenfield examined applicant, diagnosed bilateral degenerative osteoarthritis of the knees, and requested bilateral knee MRIs. (Joint Exh. 21, pp. 2 - 3.) In his August 29, 2003 report Dr. Greenfield stated:

Initially opined injury occurred in course and scope of employment; later stated apportionment to Wild Animal Park could be zero if no industrial aggravation found.

Based on examination, history, and deposition testimony.

Labor Code section 5952(d)

Award, order, or decision must be supported by substantial evidence in light of the entire record

Applied to review medical opinions and evidence for substantial evidence support

From the decision · page 8It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. (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]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess, and to be substantial evidence the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Place v. Workmen's Comp. Appeals Bd.(1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647].)

Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615

An aggravation of a pre-existing condition is an industrial injury; exacerbation is temporary and not industrial injury

Applied to define aggravation versus exacerbation in injury analysis

From the decision · page 7The aggravation of a pre-existing condition is an increase in the severity of the pre-existing condition where the underlying pathology is permanently moved to a higher level. An aggravation of a pre-existing condition is an industrial injury. (Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 617 [1935 Cal. LEXIS 590]; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794 [33 Cal.Comp.Cases 358].) Exacerbation of a pre-existing condition is a temporary increase in the symptoms that returns to its prior level within a reasonable period of time, and is not an industrial injury.

Applicant's trial testimony found credible by WCJ, inconsistent with prior deposition testimony

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint

Medical opinions inconsistent, speculative, and not based on adequate information

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint