WCAB PROCEDURE - Burden of proof of industrial causation–Labor Code §3202.5–Does the principle of liberal construction in favor of the injured worker relieve the worker of the evidentiary burden of proof by a preponderance of the evidence as to industrial causation? Teichert & Son, Inc. v. Workers' Compensation Appeals Board (Stardust Barron, Raul Barron, deceased) 10 WCAB Rptr. 10,073 [Writ Granted]
WCAB PROCEDURE - Burden of Proof–Under SB 899, the applicant continues to have the initial burden of establishing an industrial injury by a preponderance of evidence. In addition, the applicant has the burden of proving, by a preponderance of the evidence, both the overall level of permanent disability and that at least some of the permanent disability was industrially caused. In accordance with Labor Code §4553(c), the applicant also has the burden of establishing the approximate percentage of permanent disability directly caused by the industrial injury. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10, 143.) Sedgwick Claims Management Services, Inc. v. Workers' Compensation Appeals Board (Mari Symon-Chew) 10 WCAB Rptr. 10,013 [Writ Denied]
WCAB PROCEDURE - Burden of proof–The burden of proving an injury is compensable as arising out of and in the course of employment falls on the employee. (See Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 4 WCAB Rptr. 10,035.) [In this case, the employee failed to prove an erectile dysfunction disorder was the result of his industrial injury to his knees and back.] Jack Little v. Workers' Compensation Appeals Board, Tri-Valley Growers 9 WCAB Rptr. 10,374 ___Cal.App.4th___
WCAB PROCEDURE - Burden of proof-The testimony of an injured worker as to medical facts can be weighed against the contrary opinions of physicians. (See Pacific Employers Ins. V. Industrial Acc. Com. (Huffman) (1949) 92 Cal.App.2d 124.) [In this case, the testimony of the injured worker placed in serious question the medical histories provided in the QME medical reports, and accordingly the WCJ had good cause to question the subsequent medical assessments by the QMEs.] Mark Mancinelli v. Workers' Compensation Appeals Board, Cast &Crew Payroll, Inc. 9 WCAB Rptr. 10,333 [Writ Denied]
WCAB PROCEDURE - Burden of proof–In this case, due to applicant's lack of credibility, coupled with his false and inaccurate history given to more than one examining physician, it could reasonably be argued that applicant failed to meet his burden of showing that any permanent disability residual is related to his work injury. (See Penny v. Workers' Comp. Appeals Bd. (1978) 48 Cal.Comp.Cases 468 [writ denied].) Steven O'Nesky v. Workers' Compensation Appeals Board, Regional Steel 9 WCAB Rptr. 10,335 [Writ Denied]
WCAB PROCEDURE - Burden of proof–The considered expert opinion of one physician may constitute substantial evidence to support a determination of the Appeals Board. (See Braewood Convalescent Hospital v Workers' Comp. Appeals Bd. (Bolton)(1983)34 Cal,3d 159.) Richard Nye v. Workers' Compensation Appeals Board, Martin Brower 9 WCAB Rptr. 10,319 [Writ Denied]
WCAB PROCEDURE - Burden of proof-The testimony of an injured worker can be weighed against the contrary opinions of physicians. (See Pacific Employers Ins. V. Industrial Acc. Com. (Huffman) (1949) 92 Cal.App.2d 124.) But medical proof is required when issues of diagnosis, prognosis, and treatment are beyond the bounds of ordinary knowledge. (See Bstandig v. Workers' Comp. Appeals Bd.(1977) 68 Cal.App.3d 988.) Evidence from a lay witness on an issue requiring expert opinion is not substantial evidence. (See City & County of San Francisco v. Industrial Acc. Com. (Murdock) (1953) 117 Cal.App.2d 455.) Linda Perdue v. Workers' Comp. Appeals Bd., Wellpoint, Inc. 9 WCAB Rptr. 10,318 [Writ Denied]
WCAB PROCEDURE - Burden of proof -Applicant has the burden of proof for the cause of an injury. The threshold of proof is reasonable medical probability. (See McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408.) Medical evidence that lacks convincing force and the probability of truth does not establish a prima facie proof of industrial injury. See Wehr v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 188.) Altamont Landfill v. Workers' Compensation Appeals Board (Pablo Perz) 9 WCAB Rptr. 10,284 [Writ Denied]
WCAB PROCEDURE - Burden of proof– Contrary to pleadings, which can be deemed amended to conform to proof, stipulations are not deemed amended to conform to proof because the point of a stipulation is to obviate the need for proof. (See Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App. 3d 1.) Main Street California v. Workers' Compensation Appeals Board (Cheryl Mansfield) 9 WCAB Rptr. 10,086 [Writ Denied]
WCAB PROCEDURE- Burden of proof–Labor Code §5708–Applicant must affirmatively establish by a preponderance of the evidence that his medical condition was industrially caused. (In this case, none of the medical evidence concluded that it was medically probable that applicant's urological condition was caused by his industrial hernia repair surgery.) Erik Cuchilla v. Workers' Compensation Appeals Board, Pat's Restaurant & Catering 8 WCAB Rptr. 10,038 [Writ Denied]
CREDIT FOR THIRD-PARTY SETTLEMENT– Labor Code §3861–Prima facie showing of third-party recovery– Employer has the burden of proof to establish its right to claim a credit for recovery from a third party. The employer must show: there was a third-party settlement and that it had paid out compensation benefits or likely will have to pay such benefits in the future. [This can be done by production of certified copies of the documents in the third-party civil action reflecting the settlement or judgment. Normally, copies of the documents or a stipulation as to applicant's net recovery suffice.] Hughes Aircraft Company v. Workers' Compensation Appeals Board (Derek Forbes [decedent]/Zonia Forbes [applicant]) 7 WCAB Rptr. 10,170
WCAB PROCEDURE– Burden of proof– Expert medical opinion is necessary to establish the applicant's alleged inability to work an 8-hour day as an additional factor of disability. In this case, the WCJ relied on the reports of two AMEs, which did not address this issue. The only evidence on this issue was the applicant's testimony. David Baker v. Workers' Compensation Appeals Board, Charles Pfister Farms 6 WCAB Rptr. 10,287
WCAB PROCEDURE– Burden of Proof– Labor Code §3203.5– As the trier of fact, the WCJ has broad discretion to evaluate the credibility of witnesses and the persuasiveness or weight of the evidence and to resolve conflicting inferences. The appellate court will not disturb factual findings that are supported by inferences that may be fairly drawn from the evidence though the evidence may be susceptible to opposing inferences. (See Western Electric v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 629.) Linda Green v. Workers' Compensation Appeals Board, Laidlaw Bus Company. 6 WCAB Rptr. 10,158
WCAB PROCEDURE– Burden of Proof– Medical issues must be proved by medical probability. (See McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.3d 408.) Medical issues can be proven only by expert medical opinion. Lay testimony alone is not sufficient. (See Peter Kiewit Sons v. Industrial Acc.Comm. (McLaughlin) (1965) 234 Cal.App.2d 831.) Ruben Garcia v. Workers' Compensation Appeals Board, F&F Farms. 6 WCAB Rptr. 10,079
WCAB PROCEDURE– Burden of Proof– Labor Code §5705– Generally the claimant has the burden of proving that he or she suffered a work-related injury. But Labor Code §3212 creates a rebuttal presumption that operates to shift the burden of proof with respect to the presumed fact when the predicate facts are established. (See Gillette v. Workers' Comp. Appeals Bd. (1971) 23 Cal.App.3d 312. [The presumed fact is industrial causation and the claimant still has the burden of proving the predicate facts to support the presumption. In this case, the applicant failed to prove that the first manifestation of heart trouble occurred during his employment or within five years of termination.] Edwin O. Swafford v. Workers' Compensation Appeals Board, City of San Diego. 6 WCAB Rptr. 10,038
WCAB PROCEDURE– Burden of Proof– It is the applicant's burden to establish the reasonable probability of industrial causation. (See McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal. 2d 408.) The applicable standard of proof is proof by a preponderance of the evidence. (See LaTourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644.) [In this case, applicant offered no reliable medical evidence to establish an industrial injury.] Ray Grimaldo v. Workers' Compensation Appeals Board, Lockheed Martin Skunk Works. 5 WCAB Rptr. 10,343
WCAB PROCEDURE– Burden of proof– The WCJ may choose the most appropriate and convincing evidence among conflicting medical reports. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) The opinion of a single medical expert may constitute substantial evidence. [In this case, the WCJ found the opinion of the defense QME that applicant did not suffer an industrial injury to be more persuasive and better reasoned than the treating physician's conclusion that applicant "probably, or at least possibly" suffered an industrial injury.] Sabrina R. Blackburn v. Workers' Compensation Appeals Board, Applied Materials, Inc. 5 WCAB Rptr. 10,284
WCAB PROCEDURE– Burden of proof– The applicant in a workers' compensation proceeding has the burden of proving industrial causation by a reasonable probability. The burden is to establish through medical evidence that industrial causation was reasonable or probable, not a medical certainty.) See Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) [In this case, what was lacking was scientific proof of the presence of Legionella organism. The evidence was that not a single other worker exposed to the alleged mechanism of transmission (spray mist in the waste treatment plant) became ill during the same period of time.] Martha Looper v. Workers' Compensation Appeals Board, Los Angeles County Sanitation District No. 2. 5 WCAB Rptr. 10,245
WCAB PROCEDURE– Burden of proof of industrial causation–The applicant in a workers' compensation proceeding has the burden of proving industrial causation by a reasonable probability. Certain or convincing proof is not required, thus it is not applicant's burden to prove causation to a scientific or medical certainty. (See Rosas v. Workers' Compensation Appeals Board (1993) 16 Cal.App.4th 1692.) ITT Cannon v. Workers' Compensation Appeals Board (Timothy Collins) 5 WCAB Rptr. 10,213
WCAB PROCEDURE– Burden of Proof of Industrial Injury– Labor Code §3202.5– An applicant has the burden of proving industrial injury by a preponderance of the evidence. Although the medical opinion need not be stated in terms of absolute scientific certainty, the opinion must establish reasonable medical probability of industrial causation. (See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.4th 246.) Jeffrey Nasca v. Workers' Compensation Appeals Board, Frank Fats. 4 WCAB Rptr. 10,318
WCAB PROCEDURE– Burden of Proof– While it need not be shown that the employment was the sole cause of the injury, it must be shown that there was employment activity that aggravated or materially contributed to the employee's disabling condition. (See Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729.) Liberty Mutual Insurance v. Workers' Compensation Appeals Board (Adolfo Perez-Diaz) 4 WCAB Rptr. 10,270
WCAB PROCEDURE– Burden of Proof– Labor Code §3202.5– The policy of liberal construction does not relieve a party from meeting the evidentiary burden of proof. (See Wehr v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 188.) Alfredo Alcala v. Workers' Compensation Appeals Board, Ancon Marine. 4 WCAB Rptr. 10,269
WCAB PROCEDURE– Burden of proof– In this case the treating physician found the injured worker P&S and not QIW. Subsequent to this P&S report, the injured worker filed additional claims and continued to have medical problems with the original injury. The P&S report of the treating physician could not be relied upon to determine if the worker was QIW since the treating physician was only aware of the original injury and the P&S report did not therefore constitute substantial medical evidence. U.S. Sales Corporation v. Workers' Compensation Appeals Board (Dalila Gonzalez) 4 WCAB Rptr. 10,268
WCAB PROCEDURE– Burden of Proof– Labor Code §3202.5– Industrial causation may be established by showing that there is a reasonably probable causal connection between applicant's injury and employment. Industrial causation need not be to a medical certainty. (See McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692.) County of Los Angeles v. Workers' Compensation Appeals Board (Stephanie Gleason) 4 WCAB Rptr. 10,249
WCAB PROCEDURE– Burden of Proof– On a medical issue, the relevant and considered opinion of one physician, though inconsistent with other medical opinions, normally constitutes substantial evidence and cannot be rejected unless they are base on surmise, speculation, conjecture, or if they are known to be erroneous or based on incomplete information. (See Patterson v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 916.) [In this case the WCJ accepted the findings of the primary treating physician over the finding of the defense QME with respect to the mechanism of injury(injury to the knee was a result of an altered gait sustained on an industrial basis.] Southern California Edison v. Workers' Compensation Appeals Board (Carl Strosser) 4 WCAB Rptr. 10,238
WCAB PROCEDURE– Burden of Proof– Labor Code §3202.5– Applicant has the initial burden of proving by a preponderance of the evidence that the injury arose out of and in the course of employment. Preponderance of the evidence means such evidence as, when weighed with that opposed to it, has more convincing force and greater probability of truth. Nothing in Labor Code §3202 mandating liberal construction of the workers' compensation laws relieves any party of the burden of proof of a fact by the preponderance of the evidence. Junius Hope v. Workers' Compensation Appeals Board. 4 WCAB Rptr. 10,124
WCAB PROCDEDURE– Burden of proof of total permanent disability– In this case the WCJ properly rejected the testimony of a vocational rehabilitation consultant since the consultant did not order a work tolerance evaluation, never saw the report of the treating physician, did not perform a labor market survey, and only looked at education and instruction positions. Earl Teichman v. Workers' Compensation Appeals Board, ITT Federal Services Vandenberg 4 WCAB Rptr. 10,123
