WCAB PROCEDURE - Substantial medical evidence–A medical opinion to be substantial medical evidence must not be based on surmise, conjecture, speculation or inadequate medical history or examination. See Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162.) [Writ Denied]
WCAB PROCEDURE - Substantial medical evidence–Medical opinions need not be stated with scientific certainty but must be stated in terms of reasonable medical probability. (See Barcken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) Nancy Jones v. Workers' Compensation Appeals Board, Center Joint Unified School District 10 WCAB Rptr. 10,100 [Writ Denied]
WCAB PROCEDURE - Substantial evidence rule-In this case, substantial evidence supported a finding that the industrial cumulative injury to the low back, hernia, hypertension aggravated the injured worker's erectile dysfunction. The medicine required to treat the hypertension aggravated the underlying erectile dysfunction. City of Costa Mesa v.Workers' Compensation Appeals Board (Derek Harris) 10 WCAB Rptr. 10,082 [Writ Denied]
WCAB PROCEDURE - Substantial evidence rule–The considered opinion of one physician, though inconsistent with other medical reports, may constitute substantial evidence. (See LeVesque v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 588.) The WCJ may chose among conflicting medical reports and rely on the report the WCJ deems most persuasive. (See Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476.) Safeco Insurance Company v. Worker's Compensation Appeals Board (Dianne Myers) 9 WCAB Rptr. 10,379 [Writ Granted]
WCAB PROCEDURE - Substantial Evidence Rule-To constitute substantial medical evidence, medical reports must be viewed in light of the entire record. (See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) SBC/Pacific Bell v. Workers' Compensation Appeals Board (Rosa Juarez Castillo) 9 WCAB Rptr. 10,207 [Writ Denied]
WCAB PROCEDURE - Substantial medical evidence for apportionment of permanent disability–Labor Code §4663–The mere fact that a physician's report addresses the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and nonindustrial causation does not necessarily render the report substantial evidence. The report must, in part, disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability, i.e., the report must explain how the "other factors" caused permanent disability. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143.) Embassy Suite/El Segundo Hilton Hotels Corporation v. Workers' Compensation Appeals Board (Siripala Dedigama) 9 WCAB Rptr. 10,097 [Writ Denied]
WCAB PROCEDURE - Substantial Evidence Rule-In this case, the WCJ's finding of total permanent disability was properly based on the opinions of agreed medical examiners, supplemented and supported by applicant's vocational rehabilitation expert witness, who conducted face-to-face interviews with applicant, and administered a battery of tests, including the McCroskey Vocational Quotient software that determines if any of applicant's skills can be transferred into a new occupation, and applicant's extensive prescription medications and their side effects on applicant's ability to compete in the open labor market. (See, generally, LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234.) Northrop Grumman Corporation v. Workers' Compensation Appeals Board (Gary Fletcher) 9 WCAB Rptr. 10,085 [Writ Denied]
WCAB PROCEDURE - Substantial medical evidence—To constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. It is not substantial evidence if it is based on surmise, speculation, conjecture or guess. A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely the physician's conclusions. (See Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 152.) For example, if a physician apportions a percentage of permanent disability to degenerative disc disease, he must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for that portion of the disability. Yellow Transportation, Inc. v. Workers' Comp. Appeals Bd. (Jonathan Wade Huls) 8 WCAB Rptr, 10,341 [Writ Denied]
WCAB PROCEDURE- Substantial medical evidence—In relying on the opinion of a particular physician in making his determination, the Appeals Board may not isolate a fragmentary portion of the physician's report or testimony and disregard other portions that contradict or nullify the portion relied on. The Appeals Board must give fair consideration to all of that physician's report and in evaluating the evidentiary value of medical evidence, the physician's report and testimony must be considered as a whole rather than in segregated parts. (See Braken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) City of Hayward v. Workers' Compensation Appeals Board (Philip Ribera) 8 WCAB Rptr. 10,326 [Writ Denied]
WCAB PROCEDURE- Substantial medical evidence–The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) Michelle Hess v. Workers' Compensation Appeals Board, Department of Social Services 8 WCAB Rptr. 10,288 ___Cal.App.4th___
WCAB PROCEDURE-Substantial Evidence Rule–Where a factual finding of a WCJ is supported by solid, credible evidence, it is to be accorded great weight by the Appeals Board and should be rejected only on the basis of contrary evidence of considerable substantiality. (See Los Angeles Unified School District v. Workers' Comp. Appeals Bd. (1981) 116 Cal.App.3d 393) VIP Suites Motel v. Workers' Compensation Appeals Board (Paul Martin) 8 WCAB Rptr. 10,214 [Writ Denied]
WCAB PROCEDURE-Substantial Evidence Rule–Factual determinations of the Appeals Board must be upheld if there is substantial evidence in their support and the relevant and considered opinion of one physician, although inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal. Ed 371.) Ponceano Rodriguez v. Workers' Compensation Appeals Board (Hector Manuel Barbosa) 8 WCAB Rptr. 10,196 [Writ Denied]
WCAB PROCEDURE- Substantial evidence rule–If substantial evidence is based at least in part upon the trial court's credibility findings, those findings should not be disturbed except in the fact of contrary evidence of considerable substantiality and great deference should be paid to the trial court's determination because only the trial court is in the position to properly assess witnesses' credibility on the witness stand and weigh testimony in light of their presentation. (See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) Aborn-Powers, Inc .v. Workers' Compensation Appeals Board (Pamela Vass) 8 WCAB Rptr. 10.150 [Writ Denied]
WCAB PROCEDURE¬ Substantial evidence rule–If substantial evidence is based at least in part upon the trial court's credibility findings, those findings should not be disturbed except in the fact of contrary evidence of considerable substantiality and great deference should be paid to the trial court's determination because only the trial court is in the position to properly assess witnesses' credibility on the witness stand and weigh testimony in light of their presentation. (See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) Aborn-Powers, Inc .v. Workers' Compensation Appeals Board (Pamela Vass) 8 WCAB Rptr. 10.150 [Writ Denied]
WCAB PROCEDURE- Substantial evidence rule–The relevant and considered opinion of one physician may constitute substantial evidence, even though inconsistent with other medical reports in the record. An expert medical opinion, however, does not constitute substantial evidence if based on incorrect facts or legal theory or no surmise or conjecture. (See Chu v. Workers' Comp. Appeals Bd. (1996) 49 Cal.App.4th 1176.) Paradise Valley Hospital v. Workers' Compensation Appeals Board (Guillerma Sangcap) 8 WCAB Rptr. 10,009 [Writ Denied]
WCAB PROCEDURE- Substantial evidence means evidence that must be of ponderable legal significance. It must be reasonable in nature, credible, and of solid value, and must be substantial proof of the essentials that the law requires. It is more than a scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support the conclusion reached. (See Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. Bolton) (1983) 34 Cal.3d 159.) James Kho v. Workers' Compensation Appeals Board, Home Depot 8 WCAB Rptr. 10,022 [Writ Denied]
WCAB PROCEDURE– Substantial Medical Evidence— When a treating physician discusses industrial causation using the terms "possible" and "suggests," the medical opinion does not rise to reasonable medical certainty and is not substantial medical evidence upon which to base an award. Frances Roudebush v. Workers' Compensation Appeals Board, County of Plumas 7 WCAB Rptr. 10,344 [Writ Denied]
WCAB PROCEDURE– Substantial evidence rule– Where the only medical evidence introduced into evidence at trial showed industrial causation, the Appeals Board ruling that the applicant did not establish industrial injury by a preponderance of the evidence was not supported by substantial evidence. Randolph McDonald v. Workers' Compensation Appeals Board, TLG Medical Products 7 WCAB Rptr. 10,201 ___Cal.App.4th___
WCAB PROCEDURE– Substantial medical evidence–Any award, order or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. (See Lamb w. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274.) A medical report that rests on relevant facts is substantial evidence to support a finding. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 194.) Mountain View School District v. Workers' Compensation Appeals Board (Ermalinda Reyes) 7 WCAB Rptr. 10,157
WCAB PROCEDURE– Substantial evidence rule–When a finding of the Appeals Board is challenged, it must be upheld if supported by substantial evidence in light of the entire record. (See LeVeque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) The weight and sufficiency of the evidence and the credibility of witnesses are matters to be determined by the WCJ. (See Clendaniel v. Industrial Acc. Comm. (1941) 17 Cal.2d 659.) [In this case, treating physician's reports did not constitute substantial evidence because he failed to consider the effect of applicant's subsequent injury on her overall condition.] Bianca Barnes v. Workers' Compensation Appeals Board, Cost Plus World Market 7 WCAB Rptr. 10,157
WCAB PROCEDURE– Substantial medical evidence–A medical opinion does not constitute substantial evidence if it is based on inadequate medical history or examination. (See Universal City Studios v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 647.) Silvia Jaramillo v. Workers' Compensation Appeals Board, Goliath, Inc. dba 907 Club 7 WCAB Rptr. 10,155
WCAB PROCEDURE– Substantial medical evidence–In this case, the opinion of the applicant's QME that an industrial injury requiring amputation of a finger was causally related to applicant's subsequent development of Goodpasture's syndrome and kidney failure requiring a kidney transplant was not based on any degree of reasonable medical probability or certainty, and amounted to surmise, conjecture or guess, none of which can support the medical conclusion of industrial causation. (See Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 152.) Robertina Cortez v. Workers' Compensation Appeals Board, Nick's Doors 7 WCAB Rptr. 10,152
WCAB PROCEDURE– Substantial medical evidence–In this case, the finding that applicant's death from a fatal heart rhythm disturbance was secondary to industrially related hypertension and atherosclerotic heart disease, and was considered industrially related, was supported by substantial medical evidence. [The medical reports showed the fatal heart rhythm disturbance was secondary to hypertension and atherosclerotic heart disease aggravated by stress, tension, anxiety and depression secondary to severe pain, disability, and aggravation of obesity and forced sedentary life style associated with an admitted industrial injury.] Safeco Insurance Company of America v. Workers' Compensation Appeals Board (Andria Denise Hancock-Crear) 7 WCAB Rptr. 10,151
WCAB PROCEDURE–Substantial Medical Evidence–The Appeals Board is not bound to accept the findings of a chiropractor on the issue of causation involving matters of internal medicine, an area the chiropractor is not qualified in. Dena Puetz v. Workers' Compensation Appeals Board, QC Financial Services 7 WCAB Rptr. 10,126
WCAB PROCEDURE–Substantial Medical Evidence–In this case, the WCJ properly relied on the report of the Agreed Medical Examiner, who concluded that applicant's "subjective residual complaints are substantially disproportionate to his objective findings, that he has minimal pain and no need for future medical care." In addition, the AME concluded that the surgery performed was neither reasonable nor necessary, and after viewing a sub rosa film concluded that the applicant's credibility was impeached. Michael Veliz v. Workers' Compensation Appeals Board, Gulfstream Aerospace 7 WCAB Rptr. 10,126
WCAB PROCEDRE–Substantial Medical Evidence–In this case, the WCJ properly relied on a QME, who concluded that pancreatitis secondary to gallstones was entirely non-work-related. The QME rejected applicant's theories of industrial causation: (1) riding a motorcycle as a police officer jarred a gallstone loose, which blocked the common bile duct, which led to pancreatitis, or (2) eating high-fat fast food while on duty led to formation of gallstones, which led to the blockage and pancreatitis. Larry Taylor v. Workers' Compensation Appeals Board, City of Los Angeles 7 WCAB Rptr. 10,126
WCAB PROCEDURE– Substantial medical evidence–The opinion of a single medical expert may constitute substantial evidence and the trier of fact has the authority to choose the most appropriate and convincing evidence among conflicting medical reports. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) Betty Riehl v. Workers' Compensation Appeals Board, Kern County Superintendent of Schools 7 WCAB Rptr. 10,102
WCAB PROCEDURE– Substantial medical evidence–The report of a treating physician who physically examined the applicant and obtained a history and explanation of subjective complaints is substantial medical evidence on which to base an award of temporary disability, despite the fact the physician did not review the medical records concerning applicant's course of treatment. United International Investigations v. Workers' Compensation Appeals Board (Beatrice Givens) 7 WCAB Rptr. 10,101
WCAB PROCEDURE– Substantial evidence rule–It is within the purview of the WCJ as the trier of fact to draw inferences from the evidence presented and make findings as to the credibility of witnesses. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) Mrs. Gooch's Natural Food Markets, Inc. dba Whole Foods Market v. Workers' Compensation Appeals Board (Gloria Martinez) 7 WCAB Rptr. 10,078
WCAB PROCEDURE– Substantial medical evidence– In this case, there was no question that applicant's condition worsened during her period of employment. Applicant was out of work more frequently because of flare-ups and in need of more frequent treatment over time. The AME concluded his report by stating, "In the final analysis, a determination as to whether or not applicant actually sustained cumulative injury through 1998 depends, to a significant extent, on the validity of applicant's history. This will require the determination by the trier of fact." The WCJ properly concluded there was cumulative injury, and although the AME's opinion would be persuasive, he left the determination to the WCJ. Safeway, Inc. v. Workers' Compensation Appeals Board (Patricia McMurphy) 7 WCAB Rptr. 10,047
WCAB PROCEDURE– Substantial evidence rule– The relevant and considered opinion of one physician, although inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) [In this case, the WCJ properly relied on the opinion of a QME who concluded that although applicant's negative personnel evaluation contributed to her psychiatric decompensation, actual events in the workplace, other than the negative evaluation, constituted the predominant cause from all factors combined for her psychiatric decompensation.] Fireman's Fund v. Workers' Compensation Appeals Board (Wendy Eberly) 7 WCAB Rptr. 10,047
WCAB PROCEDURE– Substantial evidence rule– When a WCJ's finding of compensable injury is supported by credible evidence, it is to be accorded great weight by the Appeals Board and should be rejected only on the basis of contrary evidence of considerable substantiality. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312.) DHL Express v. Workers' Compensation Appeals Board (Michael Nadell) 7 WCAB Rptr. 10,046
WCAB PROCEDURE–Substantial Evidence Rule–An award of the WCAB is binding on appeal unless a contrary conclusion is the only one that can reasonably be drawn from the evidence. (See Shope v. Workmen's Comp. Appeals Bd. (1971) 21 Cal.App.3d 774.) Laurie D. Thompson v. Workers' Compensation Appeals Board, Pacific Groservice 6 WCAB Rptr. 10,336
WCAB PROCEDURE–Substantial medical evidence–A WCJ may not rely on medical reports known to be erroneous, no longer germane, or based on an inadequate history or examination, surmise, speculation or conjecture. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) [In this case, the treating physician was not aware of an injury the applicant sustained at home the night of his alleged industrial accident.] Patrick Delgadillo v. Workers' Compensation Appeals Board, City of Los Angeles Housing Authority 6 WCAB Rptr. 10,336
WCAB PROCEDURE– Substantial Evidence Rule–Substantial evidence is evidence that, 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. (See Skip Fordyce, Inc. v. Workers' Comp. Appeals Bd. (1983) 149 Cal.App.3d 915.) Zurich North American Insurance Company v. Workers' Compensation Appeals Board (Nancy J. Payne) 6 WCAB Rptr. 10,286
WCAB PROCEDURE– Substantial Medical Evidence– In relying on the opinion of a particular physician in making its determination, the Appeals Board may not isolate a fragmentary portion of the physician's report or testimony and disregard other portions that contradict or nullify the portion relied on. The Appeals Board must give fair consideration to all of that physician's findings. In evaluating the evidentiary value of medical evidence, a physician's report and testimony must be considered and the entire report and testimony must demonstrate the physician's opinion is based on reasonable medical probability. (See Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555.) Amir Vafadar v. Workers' Compensation Appeals Board, Microdyne Outsourcing 6 WCAB Rptr. 10,270
WCAB PROCEDURE– Substantial medical evidence–It is well-settled that the Appeals Board may rely on the medical opinion of a single physician unless it is based on surmise, speculation, conjecture or guess. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) Food Maxx v. Workers' Compensation Appeals Board (Christie Lindini) 6 WCAB Rptr. 10,229
WCAB PROCEDURE– Substantial medical evidence–In his case, the WCJ properly rejected the treating physician's diagnosis that the applicant's injury was industrial. The physician opined that any of the applicant's work activities [prolonged standing or sitting] "when performed on a chronic and repetitive basis, may cause or significantly aggravate" applicant's tarsal tunnel syndrome. For this opinion to constitute substantial medical evidence of industrial injury, the WCJ would have to both (1) find that the described activities were performed on a chronic and repetitive basis and (2) interpret "may" to mean "probably." To constitute substantial medical evidence in support of an award, a medical opinion must be based on a substantially accurate history and it must express a medical probability. Mike O'Verly v. Workers' Compensation Appeals Board, IT Corporation 6 WCAB Rptr. 10,238
WCAB PROCEDURE– Substantial Evidence Rule– The finding of no industrial injury in this case was supported by substantial evidence. The medical evidence supported the finding that applicant's condition was consistent with recurrent chronic sinusitis as a result of long-term allergies. Although chemicals at work may have exacerbated her condition, there was no evidence that the work exposure aggravated her condition. Maria Gonzalez v. Workers' Compensation Appeals Board, County of San Bernardino. 6 WCAB Rptr. 10,206
WCAB PROCEDURE– Substantial Medical Evidence– The Findings and Award must be supported by substantial medical evidence. [In this case, the opinions of the two physicians in the case were cursory in nature, skeletal and void of real opinions and contained no discussion of the reasons for their findings. The reports were mere forms without lines and blocks and contained a free-form list of conclusions.] The May Department Store Company, aka Robinson-May v. Workers' Compensation Appeals Board (Teresa Wiedenman) 6 WCAB Rptr. 10,176
WCAB PROCEDURE– Substantial Medical Evidence– Is the report of a treating physician, who physically examined the applicant and obtained a history and explanation of subjective complaints, substantial medical evidence on which to base an award of temporary disability, despite the fact the physician did not review the medical records concerning applicant's course of treatment? United International Investigations v. Workers' Compensation Appeals Board (Beatrice Givens) 6 WCAB Rptr. 10,171
WCAB PROCEDURE– Substantial Medical Evidence– A workers' compensation judge may not rely on medical reports known to be erroneous or based upon an inadequate history or examination. (See Place v. Workers' Comp. Appeals Bd. (1970) 35 Cal.Comp.Cases 525.) [In this case, the primary treating physician's opinions included handwritten progress notes that did not conform to California Code of Regulations, Title 8, §10606, the physician had not reviewed pertinent medical records that documented long-standing and pre-existing medical problems, the orthopedic examination was inadequate, and the narrative reports were not originally signed by the physician but had stamped signatures.] Jasmine Villalon v. Workers' Compensation Appeals Board, Federal Express. 6 WCAB Rptr. 10,160
WCAB PROCEDURE– Substantial Evidence Rule– Factual determinations of the Appeals Board must be upheld if there is substantial evidence in their support and the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 373.) [In this case, the medical evidence did not indicate any separate, distinct injuries on the job but demonstrated several nonindustrial injuries.] George Salinas v. Workers' Compensation Appeals Board, Hanson Aggregate. 6 WCAB Rptr. 10,159
WCAB PROCEDURE– Substantial Evidence Rule– The relevant and considered opinion of one physician, although inconsistent with other medical opinions is substantial evidence. (See Liberty Mutual Insurance Company v. Workers' Comp. Appeals Bd. (1981) 118 Cal.App.3d 265.) Linda Green v. Workers' Compensation Appeals Board, Laidlaw Bus Company. 6 WCAB Rptr. 10,158
WCAB PROCEDURE– Substantial Evidence Rule– If the findings of the Appeals Board are supported by substantial evidence or inferences which may clearly be drawn from the evidence, even though the evidence is susceptible of opposing inferences, the decision will be sustained. (See Pacific Lumber Company v. Ind. Acc. Comm. (1943) 22 Cal.2d 410.) Delia Guzman v. Workers' Compensation Appeals Board, Costco. 6 WCAB Rptr. 10,108
WCAB PROCEDURE– Substantial Medical Evidence– The opinion of one physician may constitute substantial evidence even though it is inconsistent with other medical opinions in the case. (See LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) Catholic Healthcare West v. Workers' Compensation Appeals Board (Theresa Mary Johnson) 6 WCAB Rptr. 10,047
WCAB PROCEDURE– Substantial Evidence Rule– An award, order or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. The test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence that supports the finding and ignoring other relevant facts that rebut or explain the evidence. (See LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) [In this case, the WCJ found that the applicant had testified credibly about the mechanism of the accident that was corroborated by other evidence in the case.] Lodi Unified School District v. Workers' Compensation Appeals Board (Nanci Omaye-Byrne) 6 WCAB Rptr. 10,028
WCAB PROCEDURE– Substantial Evidence Rule– Whether or not an employee's injury is proximately caused by employment is a question of fact. (See State Compensation Insurance Fund v. Industrial Accident Commission (1960) 176 Cal.App.2d 10.) Judicial review of a Board decision on factual matters is limited to determining whether the decision, based on the entire record, is supported by substantial evidence. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274.) [In this case, the applicant's testimony was not credible and inconsistent and the medical reports were based on inaccurate histories.] Alcides Pereira v. Workers' Compensation Appeals Board, Standard Parking. 6 WCAB Rptr. 10,027
WCAB PROCEDURE– Substantial Medical Evidence– The WCJ as the trier of fact has the power to choose, among conflicting reports, those the WCJ deems most appropriate. (See Jones v. Workmen's Comp. Appeals Bd. (1968) 86 Cal.2d 476.) The relevant and considered opinion of one doctor may constitute substantial evidence even though inconsistent with other reports in the record. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) E.L. Yeager Construction v. Workers' Compensation Appeals Board (Rafael Saldana) 6 WCAB Rptr. 10,026
WCAB PROCEDURE– Substantial Medical Evidence– It is well established that the relevant and considered opinion of one physician, although inconsistent with other medical opinions, may constitute substantial evidence. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) [In this case, the disability evaluation and the determination of permanent and stationary status are not inconsistent with ongoing treatment for the purpose of pain management.] Jerrie Lambert v. Workers' Compensation Appeals Board, San Diego Unified School District. 5 WCAB Rptr. 10,361
WCAB PROCEDURE– Substantial Medical Evidence– A medical opinion is not substantial evidence if it is erroneous, beyond the physician's expertise, no longer germane, or based on an inadequate history, surmise, speculation or guess. (See Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372.) [In this case, the applicant was not entitled to further develop the record after providing a false medical history.] Franklin Lehr v. Workers' Compensation Appeals Board, County of San Diego. 5 WCAB Rptr. 10,360
WCAB PROCEDURE– Substantial Medical Evidence– An expert's medical opinion, which does not rest upon relevant facts, or which assumes an incorrect legal theory, cannot constitute substantial evidence. An expert opinion is also insufficient to support an Appeals Board determination if it is based on surmise, speculation, conjecture or guess. (See Graza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) Santa Barbara Metropolitan Transit District v. Workers' Compensation Appeals Board (Wendy Murdoch) 5 WCAB Rptr. 10,360
WCAB PROCEDURE– Substantial Evidence Rule– The record in this case contained evidence of substantiality supporting a finding that applicant was not a credible witness regarding his alleged industrial injury. [Applicant's accounts of the mechanism of his accident, of what he did after the accident, and of his injuries given to his employer, to treating and examining physicians and to the WCJ at trial varied in material respects and only served to impeach his credibility.] Jose J. Hidalgo v. Workers' Compensation Appeals Board, Impaxx, Inc. 5 WCAB Rptr. 10,343
WCAB PROCEDURE– Substantial Evidence Rule– In this case, the finding of permanent disability relating to knee injury was based on substantial medical evidence, including an absence of atrophy of the quadriceps muscle, which was a significant objective finding. Bikar Chera v. Workers' Compensation Appeals Board, Denny's Restaurant. 5 WCAB Rptr. 10,342
WCAB PROCEDURE– Substantial Evidence Rule– In this case, substantial evidence supported the finding of no industrial injury to internal system or psyche as the result of exposure to noxious fumes. [The treating physicians had an incorrect medical history based on applicant's failure to disclose preexisting problems with allergies and sinuses and exaggeration of symptoms. In addition, the applicant failed to disclose the fact that she was able to continue to work without restrictions for other employers.] Thersa Ledezma v. Workers' Compensation Appeals Board, City of San Fernando. 5 WCAB Rptr. 10,342
WCAB PROCEDURE– Substantial Evidence Rule– In this case, substantial evidence supported the finding that applicant worked more than 52 hours before his injury and was an employee not excluded from workers' compensation benefits pursuant to Labor Code §3362(h). Richard Saxton, Fire Insurance Exchange v. Workers' Compensation Appeals Board (Robert Montoya) 5 WCAB Rptr. 10,341
WCAB PROCEDURE– Substantial Evidence Rule– In this case, substantial evidence supported the finding that applicant worked more than 52 hours before his injury and was an employee not excluded from workers' compensation benefits pursuant to Labor Code §3362(h). Richard Saxton, Fire Insurance Exchange v. Workers' Compensation Appeals Board (Robert Montoya) 5 WCAB Rptr. 10,328
WCAB PROCEDURE– Substantial Evidence Rule– In this case, applicant offered as evidence of the need and cost of home health care for paraplegic, the testimony of a certified disability management specialist and life care planner. In providing her expert witness testimony on the issue of the cost of disability-related attendant care, she properly relied on the opinions of medical evaluators who prescribed attendant care for the injured worker. AIG Claims Services, Inc. v. Workers' Compensation Appeals Board (Jason England) 5 WCAB Rptr. 10,306
WCAB PROCEDURE– Substantial Medical Evidence– In this case, the report of the treating physician was substantial evidence that applicant sustained an industrial injury to his cardiovascular system. The physician stated: "Based on the history in this case, it can be stated with reasonable medical probability that the high stress levels in [his] job contributed to the pathogenesis of his coronary artery disease. It is also medically probable that the recurrent stress in that position during the last 12 years of employment contributed to a progression of his coronary artery disease, resulting in progressive damage to his heart muscle, leading to his ischemic cardiomyopathy." [The applicant worked in a think tank and had an excessive workload for 17 years. He worked 50 hours a week and occasionally around the clock. He was continually threatened with his job and was humiliated and criticized by management regularly. He returned to his job after bypass surgery and worked an additional 12 years before suffering a second heart attack.] The Boeing Company v. Workers' Compensation Appeals Board (Anthony Dragonetti) 5 WCAB Rptr. 10,306
WCAB PROCEDURE– Substantial Evidence Rule– To determine the amount of disability attributable to an injury, consideration should be given to the employee's diminished ability to compete in an open labor market. (See Moyer v. Workmen's Comp. Appeals Bd. (1972) 24 Cal.App.3d 650.) In this case, the applicant's vocational rehabilitation expert witness testified that applicant's disability prevented him from any access to the open labor market based in part on the applicant having been out of the labor market for six years, having been out of school for 35 years, and having no transferable skills. In addition, the expert witness focused his labor market search in the small rural area where the applicant lived, which had a high unemployment rate with a not well diversified economy. Chevron Stations, Inc. v. Workers' Compensation Appeals Board (James Belcher) 5 WCAB Rptr. 10,305
WCAB PROCEDURE– Substantial medical evidence– In this case, only one physician concluded applicant's nasal and facial pain syndrome problems were related to his work. The physician, who had treated applicant for five years, submitted only one report, which mentioned causation as a problem and it consisted of a mere conclusion without any explanatory reasoning. The entire comment on the issue of causation was "chronic exposure to environmental/industrial toxins and allergens led to chronic maxillary sinusitis requiring surgery," but the physician did not mention what toxins he was referring to. Michael Barnhart v. Workers' Compensation Appeals Board, Valley Crop Services. 5 WCAB Rptr. 10,246
WCAB PROCEDURE– Substantial medical evidence–The considered opinion of one physician, although inconsistent with other medical reports, may constitute substantial evidence. (See LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627.) The WCJ is empowered to choose among conflicting medical reports and rely on that what the WCJ deems most persuasive. (See Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476.) Albertsons v. Workers' Compensation Appeals Board (Miguel Navarrete) 5 WCAB Rptr. 10,212
WCAB PROCEDURE– Substantial Medical Evidence– The report of applicant's QME was not substantial evidence because the finding of permanent and stationary status was inconsistent with the diagnosis and recommendation for aggressive psychotherapy, completely discounted and ignores the subsequent employment for five years as contributing in any way to her psychological condition and ignored noncompensable stressors. Linda Lindsey v. Workers' Compensation Appeals Board, Survivor Industries, Inc., Uninsured Employers' Fund. 5 WCAB Rptr. 10,191
WCAB PROCEDURE– Substantial Evidence Rule– In this case, there was substantial medical evidence to support a finding that applicant's toxic exposure to benzene and solvents caused applicant's multiple myelomas. [The applicant's QME's report was based on an accurate history and review of the injured worker's entire medical file and attached articles in support of his opinion that showed the significant risk between exposure to benzene and other solvents and multiple myelomas.] BFI Waste Systems, Inc. v. Workers' Compensation Appeals Board (Pedro Ibarra Flores) 5 WCAB Rptr. 10,181
WCAB PROCEDURE– Substantial Medical Evidence– The appropriate standard for determining the competency of medical evidence is that the proof of industrial causation is reasonably probable, although not certain or convincing even though the exact causal mechanism is unclear or even unknown. (See McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 660.) [In this case, the evidence established a causal link between applicant's industrial exposure to hydrocarbons and early onset of Parkinson's disease.] Mail-Well, Inc. v. Workers' Compensation Appeals Board (Christopher Waddell) 5 WCAB Rptr. 10,179
WCAB PROCEDURE– Substantial Evidence Rule– Medical reports and opinions are not substantial evidence if they are based on surmise, speculation or conjecture or if they are based on an inadequate medical histories and examinations. (See Patterson v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 916.) George McCleary v. Workers' Compensation Appeals Board, Tilden-Coil Constructors, Inc. 5 WCAB Rptr. 10,164
WCAB PROCEDURE– Substantial Evidence Rule– Substantial medical evidence supported the finding of no industrial injury. While the applicant contended that prolonged sitting aggravated her degenerative disc disease, there was no evidence showing that the chairs she was using in her sedentary work were ergonomically defective. Madeleine Cole v. Workers' Compensation Appeals Board, Mildara Blass Wines. 5 WCAB Rptr. 10,152
WCAB PROCEDURE– Substantial Evidence Rule– Substantial evidence supported a finding that the industrial injury caused applicant's hypertension. The treating physician indicated a diagnosis of hypertension and applicant testified that he had never before in his life had high blood pressure until his industrial injury. The defense medical evidence that hypertension was a remarkably common disease in American males and that there was no known etiology for labile hypertension although statistically true based on empirical data for a large population did not rebut the specific medical evidence in this case. Raul O'Campo v. Workers' Compensation Appeals Board, Bear Creek Corporation. 5 WCAB Rptr. 10,151
WCAB PROCEDURE– Substantial Evidence Rule– In this case, there was substantial evidence to support the determination that the decedent's industrial exposure to acetone was the cause of the seizure that led to his death. The independent medical examiner concluded that it was medically reasonably probable that decedent's seizure was triggered by his industrial acetone exposure and the relatively low level of acetone measured in his bloodstream would be sufficient to cause the seizure due to the cumulative effects of exposure to acetone when combined with a predisposition to seizures due to a nonindustrial automobile accident. Louis Hungate dba Zenk Carbide Products v. Workers' Compensation Appeals Board (Manuel Fiz) 5 WCAB Rptr. 10,100
WCAB PROCEDURE– Substantial Evidence Rule– In this case, the WCJ properly relied on the defendant's psychologist in denying psychiatric injury on the basis that the applicant was diagnosed as malingering. This opinion was consistent with the AME, an orthopedic surgeon who found the applicant to be inconsistent with respect to range of motion. The psychologist noted that the applicant had a consistent tendency toward embellishment of his psychological and medical condition, was frequent in his reporting of inconsistencies and intentionally failed to disclose relevant information about his condition. William Munoz v. Workers' Compensation Appeals Board, The Boeing Company. 5 WCAB Rptr. 10,070
WCAB PROCEDURE– Substantial Evidence Rule– In this case, the record supported a finding that the applicant was 100% permanently disabled due to an injury to her psyche. Applicant testified to the difficulties she has with everyday activities, need to take anxiety medication, need not to eat or drink, need to avoid going to public places and avoiding socializing with her neighbors and her extreme difficulty concentrating and staying on task. Tenneco Packaging and Ace USA/ESIS v. Workers' Compensation Appeals Board (Barbara Rinehart) 5 WCAB Rptr. 10,055
WCAB PROCEDURE– Substantial Evidence Rule– Any award, order or decision must be supported by substantial evidence in light of the entire record. In this case, the entire record, including subrosa films, which depicted significant and apparent unrestricted activities when the applicant considered herself apparently unobserved, or was not entering or exiting doctors' offices, supported a finding that her disability was not as significant as she claimed it was. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 273.) Sandyha Lachan v. Workers' Compensation Appeals Board, Zurich American Insurance Company. 5 WCAB Rptr. 10,053
WCAB PROCEDURE– Substantial Evidence Rule– In this case, substantial evidence including applicant's unrebutted credible testimony and applicant's orthopedic and internal medicine QMEs supported the relationship between applicant's heart attack and a back injury due to cumulative trauma at work. Risk Enterprise Management v. Workers' Compensation Appeals Board (Louis Ford) 5 WCAB Rptr. 10,020
WCAB PROCEDURE– Substantial medical evidence– In this case, the WCJ gave full weight to the opinions expressed by the defense medical examiners because their expert opinions were better reasoned and more persuasive than those of applicant's treating and evaluating physicians. [Both defense medical examiners found the applicant suffers from non-industrial seronegative spondyloarthropathy/Reiter's Syndrome without any occupational aggravation or impact. The initial onset of Reiter's syndrome was 20 years ago and the applicant's clinical course was relatively of slow progression, it was apparent that it conformed to the natural history of the disease, without any occupational aggravation.] Terry J. James v. Workers' Compensation Appeals Board v. Workers' Compensation Appeals Board, Anderson Printing. 4 WCAB Rptr. 10,346
WCAB PROCEDURE– Substantial medical evidence– Opinions about the ability to compete in the open labor market are outside a physician's medical expertise. Medical opinions about a patient's disability, even total disability, are within the physician's medical expertise. (See Merino v. Workers' Comp. Appeals Bd. (2001) 3 WCAB Rptr. 10,077.) Ann M. Holmerg, DDS v. Workers' Compensation Appeals Board (Lauren Fong) 4 WCAB Rptr. 10,343
WCAB PROCEDURE– Substantial medical evidence– In determining whether a medical report has evidentiary value, the WCJ must consider the substance as well as the form of the report as required by applicable statues, regulations and case law. (See Labor Code §4620(c) and Administrative Director Rule 9793(g)(3).)] In this case, the applicant's QME did not ha e a complete history of the applicant's prior condition, and therefore his reports lacked the substantiality to prove injury to the disputed body parts.] Shirley Ross v. Workers' Compensation Appeals Board, Wellpoint Health Network. 4 WCAB Rptr. 10,318
WCAB PROCEDURE– Binding medical evidence– In this case, the applicant had two separate claims: an admitted specific injury claim to the back against an employer insured by Explorer Insurance and a cumulative injury claim to the neck, back, both upper extremities and both shoulders against another employer insured by Insurance Company of the State of Pennsylvania. An Agreed Medical Examiner was used to resolve the specific injury claim. AIG was not party to the agreed medical examination process and the WCJ was not bound by the opinions of the AME in the cumulative injury claim against AIG. Insurance Company of the State of Pennsylvania v. Workers' Compensation Appeals Board (Enrique Lopez) 4 WCAB Rptr. 10,286
WCAB PROCEDURE– Substantial medical evidence– In determining whether a report constitutes substantial evidence, the Board may not rely on medical reports that are erroneous, no longer germane, or based upon inadequate medical history. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal. 3d 372.) An expert's medical opinion htat does not rest upon relevant facts, or which assumes an incorrect legal theory, cannot constitute substantial evidence. An expert opinion is also insufficient to support a Board determination if it is based on surmise, speculation, conjecture or guess. (See Garza v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 312.) Silgan Containers v. Workers' Compensation Appeals Board (Daniel Wiltfong) 4 WCAB Rptr. 10,286
WCAB PROCEDURE– Substantial medical evidence– Medical opinions need not be stated with scientific certainty but must be stated in terms of reasonable medical certainity. (See Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246.) Colliers Building Services v. Workers' Compensation Appeals Board (Carl Michen) 4 WCAB Rptr. 10,287
WCAB PROCEDURE– Substantial medical evidence– The Appeals Board has the power to choose the most persuasive from among conflicting medical reports. (See Sabedra v. Workers' Comp. Appeals Bd. (1974) 42 Cal.App.3d 428.) The relevant and considered opinion of one physician though inconsistent with other medical opinions, may constitute substantial medical evidence. (See Smith v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 588.) [In this case the WCJ rejected the injured worker's physician's opinion that the alleged injuries were industrial based on general complaints of work stress and accepted the defense expert's opinion that the injuries were non industrial given significant non-work risk factors when compared with diffuse and ill-defined stress complaints.] Reese Dixon v. Workers' Compensation Appeals Board, California Highway Patrol. 4 WCAB Rptr. 10,271
WCAB PROCEDURE– Substantial medical evidence– In this case the treating physician's opinion was devoid of reasoning regarding the bare conclusion that applicant was restricted to semi-sedentary work. The report was not substantial evidence as it did not manifest sufficient analysis of the factual material and the opinion regarding applicant's restriction was the product of surmise, speculation or conjecture. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal. 3d 372.) Roberto Bravo v. Workers' Compensation Appeals Board, C&D Equipment Company. 4 WCAB Rptr. 10,270
WCAB PROCEDURE– Substantial Medical Evidence– It is well established that the relevant opinion of one physician may constitute substantial medical evidence even though it is in conflict with the opinion of another physician. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) [This case involved a relatively rare condition: interstitial lung disease or restrictive lung disease with pulmonary insufficiency and the WCJ chose the medical opinion that included two independent pathologists' review of lung biopsies that supported the final diagnosis of Respiratory Bronchiolitis Interstitial Disease.] Dale Davis v. Workers' Compensation Appeals Board, Desert Regional Medical Center. 4 WCAB Rptr. 10,269
WCAB PROCEDURE– Substantial Evidence Rule– The trier of fact can not rely on isolated facts presented by an expert witness' testimony and ignore other relevant parts. (In this case the applicant argued that the WCJ should have focused on one isolated and unrepresentative aspect of the expert witness' testimony and to completely ignore the overall tenor, tone and thrust of the witness' testimony. Robert A. Hole v. Workers' Compensation Appeals Board, United Parcel Service. 4 WCAB Rptr. 10,253
WCAB PROCEDURE– Substantial Medical Evidence– A decision that relies upon a particular physician's report may not isolate a fragmentary portion of the report and must give fair consideration of all physicians' findings. The decision may not be supported through isolating evidence to support finding while ignoring other relevant facts of record which explain the evidence. (See Lamb v. Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274.) [In this case the WCJ properly rejected the opinion of an Agreed Medical Examiner since the AME report contained an inaccurate history of the onset of significant back symptoms accompanied by time-off from work and continuing self-limiting conduct undertaken by the applicant to avoid progressive symptoms and re-injury.] Fremont Compensation Insurance Group v. Workers Compensation Appeals Board (Juan Navarro) 4 WCAB Rptr. 10,239
WCAB PROCEDURE– Substantial Evidence Rule– Substantial medical evicence supported the finding of no industrial injury. [Applicant's low back problem was related to her limping and use of crutches resulting from non industrial fibrous dysplasia.] Evelyn Aguino v. Workers' Compensation Appeals Board, State of California, Department of Corrections. 4 WCAB Rptr. 10,189
WCAB PROCEDURE– Substantial Evidence Rule– In this case substantial evidence supported a finding of no industrial back injury. [The medical records shoed that applicant discussed back surgery before commencing his employment and despite back symptoms during his two-month employment, applicant had no lost time.] Burns International Security v. Workers' Compensation Appeals Board (David Sweet) 4 WCAB Rptr. 10,189
WCAB PROCEDURE– Substantial Evidence Rule– In this case the totality of the evidence of the injured worker's work restrictions in addition to her ability to work only parital days in a protected environment allowing he to change her body position at will and her inability to participate in vocational rehabilitation training supported the finding of 100% permanent disability.(See Le Boeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d. 234.) Farmers Insurance Group v. Workers' Compensation Appeals Board (Patricia Glavey) 4 WCAB Rptr. 10,188
WCAB PROCEDURE– Substantial Evidence Rule– Without substantial medical evidence connecting the injury with applicant's present complaints, there was no alternative to conclude that the applicant did not sustain temporary disability, permanent disability and need for medical treatment. [In this case the applicant was symptom free for a period of six months after a minor slip and fall and there was not medical evidence to support the contention that the slip and fall could have "lightened-up" a progressive disease process six months post injury.] Maria Dolores Vazquez v. Workers' Compensation Appeals Board, The Old Yacht Club. 4 WCAB Rptr. 10,187
WCAB PROCEDURE– The decision in this case was based on substantial evidence. The Appeals Board may properly rely on one medical opinion to the exclusion of others in reviewing the record. (See LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) A decision which is based on inferences which may fairly be drawn from the evidence, even though the evidence is susceptible of opposing inferences, will not be disturbed by the Appeals Board. (See Pacific Lumber Co. v. Ind. Acc. Comm. (Turkovich) (1943) 22 Cal.2d 410.) [In this case the medical question of whether a cumulative trauma occurred in this case was decided based on the unrebutted factual history and there was no rebuttal to the applicant's rendition of his history or his symptoms while working and accordingly the facts relied upon by the treating physician were accepted as true. (Lamb v Workers' Comp. Appeals Bd. (1974) 11 Cal.3d 274)] Fisherman's Grotto v. Workers' Compensation Appeals Board (James Leinon) 4 WCAB Rptr. 10,014
WCAB PROCEDURE– Substantial Evidence– The finding and conclusions of the appeals board on questions of fact are conclusive and final so long as, based on the entire record, the findings and conclusions are supported by substantial evidence. (See LeVesque v. Workers Comp. Appeals Bd. (1970) 1 Cal.3d 627.) Substantial evidence is defined as evidence which, if true, has probative force on the issues, is relevant evidence as a reasonable mind might accept as adequate to support a conclusion, is reasonable in nature, credible, and of solid value, and actual substantial proof of the essential elements that the law requires in a particular case. (See Breawood Convalscent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159.) Shareen Brunhofer v. Workers' Compensation Appeals Board, Reid Corporation. 4 WCAB Rptr. 10,014
WCAB PROCEDURE– Substantial Evidence Rule– Substantial evidence supported the finding of a cumulative trauma injury. In this case, after reviewing applicant's testimony and the entire medical record, the WCJ properly applied his expertise to determine the extent of the applicant's disability. (See U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal.3d 369.) Ara Magazine & Book v. Workers' Compensation Appeals Board (Delores Babinski) 3 WCAB Rptr. 10,324
WCAB PROCEDURE– Substantial Evidence Rule– The finding that applicant did not sustain a cumulative industrial injury was supported by substantial evidence. [In this case, the defense QME's report was most compiling since he concluded that applicant's respiratory tract symptoms were not related to the claimed chemical exposure since the applicant had bee in the work are for quite some time without difficulty and the pulmonary function studies were essentially normal and the cardiopulmonary exercise study was maximal with no pulmonary limitation noted.] Brian Slinker v. Workers' Compensation Appeals Board, United Airlines. 3 WCAB Rptr. 10,324
WCAB PROCEDURE– Substantial Medical Evidence– A medical report based on guesses, surmise or conjecture does not constitute substantial medical evidence. (See Owing v. Industrial Accident Commission (1948) 31 Cal.2d 689.) [In this case, the treating physician did not state why the injury was industrial or what at work may have caused the applicant's foot infection. The physician simply made a bare unsubstantiated conclusion of industrial causation.] Victoria J. Muir v. Workers' Compensation Appeals Board, United Airlines. 3 WCAB Rptr. 10,294
WCAB PROCEDURE– Substantial Evidence Rule– Substantial evidence supported the finding that the applicant had not sustained any permanent disability to compete in the open labor market. Applicant failed to state sufficient facts refute the finding and failed to present any basis of newly discovered evidence or any procedural fraud which could give rise to reconsideration being granted. Haifa Nemr v. Workers' Compensation Appeals Board, Volt Temporary Services. 3 WCAB Rptr. 10,294
WCAB PROCEDURE– Substantial Medical Evidence– Although the medical reports showed prior back problems and treatment, there was no record of any complaints or treatment relating to the disability in question and accordingly the applicant had proven by a preponderance of the evidence an industrial back injury. Kemper Insurance Company v. Workers' Compensation Appeals Board (Carlos Gudino) 3 WCAB Rptr. 10,283
WCAB PROCEDURE– Substantial Evidence Rule– Factual determinations by the WCJ must be upheld if there is substantial evidence in their support. Similarly, it is well established that the considered opinion of one physician, although inconsistent with other medical opinions, may constitute substantial evidence. (See Smith v. Workers' Comp. Appeals Bd. (1969) 71 Cal.2d 588; Braewood Convalescent Hospital v. Workers' comp. Appeals Bd. (Boldton) (1983) 34 Cal.3d 159; Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775.) Irma Sanabrea v. Workers' Compensation Appeals Board, Freedom Village Health Center. 3 WCAB Rptr. 10,246
WCAB PROCEDURE– Substantial Evidence Rule– In this case, there was substantial evidence to support the finding that applicant was totally disabled. The WCJ properly developed the record concerning discrepancies between the applicant's testimony and surveillance video tapes by having the video tapes reviewed by the two AMEs in the case. Southern California Permante Medical Group v. Workers' Compensation Appeals Board (Grace Lin) 3 WCAB Rptr. 10,188
WCAB PROCEDURE– Substantial Medical Evidence– Did the WCJ rely on medical reports which were materially defective since the physician did not review all of the medical records and was unaware of prior multiple industrial and non industrial injuries prior to the industrial back injury at issue? Kemper Insurance Company v. Workers' Compensation Appeals Board (Carlos Gudino) 3 WCAB Rptr. 10,199
WCAB PROCEDURE– Substantial Evidence Rule– In this case, there was no medical opinion to support a finding of permanent total disability from any of the physicians who treated and evaluated the injured worker. The WCJ relied on the opinion of a vocational rehabilitation counselor as a substitute for an expert medical opinion to support a finding of permanent total disability. Gallo Glass Company v. Workers' Compensation Appeals Board (Herman Gutierrez) 3 WCAB Rptr. 10,205
WCAB PROCEDURE– Substantial Evidence Rule– In this case, the defendant contended that the medical opinions on which the WCJ relied were not substantial evidence in that the medical examiners failed to review all the medical reports and other medical evidence. The defendant, however, failed to comply with Rule 10842 since the defendant did not state what mateial evidence was involved and did not explain how the additional record review would materially affect the doctors' findings. Safeco Insurance Companies v. Workers' Compensation Appeals Board (Adolfo Ramirez) 3 WCAB Rptr. 10,190
WCAB PROCEDURE– Substantial Evidence Rule– There was substantial medical evidence to support the finding of permanent disability as a result of an industrial injury. [Although there may have been some degenerative pathology in the knee when applicant began employment with the defendant, the intensive and repetitive squatting and kneeling while employed by the defendant rendered the condition symptomatic and therefore industrial. 99 Cents Stores v. Workers' Compensation Appeals Board (Abel Barreras) 3 WCAB Rptr. 10,189
WCAB PROCEDURE– Substantial Evidence Rule– In determining whether a report constitutes substantial medical evidence, the Appeals Board may not rely on medical reports that are erroneous, no longer germane, or based on inadequate medical history. An expert's medical opinion which does not rest upon relevant facts, or which assumes an incorrect legal theory, cannot constitute substantial evidence. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) In this case, the treating psychologist failed to explain how, over one year after a minor toxic exposure had completely resolved, applicant was in need of psychiatric and psychological treatment on an industrial basis. In addition, the psychologist history of applicant's supposed diagnosis of fibromyalgia came from applicant oral history to the psychologist without any medical support. Gregory Morrow v. Workers Compensation Appeals Board. 3 WCAB Rptr. 10,093
WCAB PROCEDURE– Substantial Medical Evidence– To constitute substantial medical evidence, the physician's opinion must be based on relevant facts. The physician must disclose the underlying facts upon which his or her expert opinions are based. An expert medical opinion is insufficient to support an Appeals Board determination when the opinion is based upon surmise, speculation, conjecture or guess. (See Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) City and County of San Francisco v. Workers Compensation Appeals Board (Steve Fotinos) 3 WCAB Rptr. 10,078
WCAB PROCEDURE– Substantial Medical Evidence– A medical report which is (1) based upon inadequate history, (2) does not rest upon relevant facts or which assumes an incorrect legal theory, or (3) is based on surmise, speculation, conjecture, or guess cannot constitute substantial medical evidence (See generally, Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372.) Kern High School District v. Workers Compensation Appeals Board (Stephanie Fisher) 3 WCAB Rptr. 10,060
WCAB PROCEDURE– Substantial Medical Evidence– In this case, substantial medical evidence supported a finding of no specific injury to the psyche. There was substantial evidence that any impairment the applicant may have had to compete in the open labor market on a psychiatric basis was entirely attributable to non-industrial factors. Joseph Montes v. Workes' Compensation Appeals Board, County of Los Angeles. 3 WCAB Rptr. 10,126
WCAB PROCEDURE– Substantial Evidence Rule– In this case, there was substantial evidence to support a finding of no cumulative repetitive motion injury. There was not evidence of any mention of numbness, tingling or any difficulty with the hands reported by the applicant to her treating physician prior to her discharge by the employer and the applicant's trial testimony conflicted with her deposition testimony on her symptoms and her work activities. Bonita Goethe v. Workers' Compensation Appeals Board, Regency Thermographers. 3 WCAB Rptr. 10,126
WCAB PROCEDURE– Substantial Evidence Rule– The evidence in this case properly supported 100% permanent disability as a result of industrial exposure to chemicals or allergens. The injury included injury to the respiratory system, unticaria, other allergic sequella and ultimately idiopathic anaphylaxis, an extreme life-threatening allergic reaction which can be triggered by any number of known and unknown allergens, fumes, odors, irritants and toxins. Scandia Downs v. Workers' Compensation Appeals Board (Jackie Turner) 3 WCAB Rptr. 10,126
WCAB PROCEDURE– Substantial Evidence Rule– The overall record in this case, supported the finding of injury to the right elbow and wrist but that the cervical and shoulder complaints which first appeared more than one year after the initial treatment for the elbow and wrist. [The evidence in this case showed that the expanding evaluation and treatment was based not on the opinion of the primary treating physician but on a functional capacity evaluation by a physical therapist and a diagnosis by a family nurse practitioner who apparently ordered an MRI of the shoulder.] Mirna Castrillo v. Workers' Compensation Appeals Board, Packard Bell. 3 WCAB Rptr. 10,109
WCAB PROCEDURE– Substantial Evidence Rule– The report of one physician may be substantial medical evidence which supports a finding of no permanent disability, temporary disability or need for further medical care. American International Group Claim Services, Inc. v. Workers' Compensation Appeals Board (Isidro Naranjo) 3 WCAB Rptr. 10,091
WCAB PROCEDURE– Substantial Evidence Rule– Labor Code §5908.5– In determining whether an order, decision, or award of the Appeals Board is supported by substantial evidence, a court must consider the entire record and not isolate only the evidence that supports or disapproves the Board's decision, while disregarding or ignoring other relevant facts in the record that rebut or explain that evidence. Kern High School District v .Workers' Compensation Appeals Board (Stephanie Fisher) 3 WCAB Rptr. 10,052
WCAB PROCEDURE– Substantial Evidence Rule– The opinion of the treating physician was substantial medical evidence to support the finding that the injured worker was capable of returning to the job which she held at the time of her injury and defendant's liability for temporary disability ceased. Amalia Lerma v. Workers' Compensation Appeals Board 3 WCAB Rptr. 10,029
WCAB PROCEDURE– In this case, there was substantial medical evidence that applicant's medical condition resulting from an incident at home was an aggravation and exacerbation of her industrial injury for which continuing medical treatment had been awarded. (See leVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627.) The May Department Stores Company dba Robinsons-May v. Workers' Compensation Appeals Board (Shon Callendret) 3 WCAB Rptr. 10,028
WCAB PROCEDURE– Substantial Evidence Rule– The medical evidence in this case supported a finding that applicant did not sustain injury arising out of or occurring in the course of employment to her internal, cardiovascular, or neurological system in the form of diabetes. The report of one physician that applicant's diabetes was at an advanced state prior to her industrial injury constituted substantial medical evidence to support the finding. (See City of Santa Ana v. Workers' Comp. Appeals Bd. (1982) 128 Cal.App. 3d 212.) Sandra Wild v. Workers' Compensation Appeals Board, Calvary Chapel. 3 WCAB Rptr. 10.028
WCAB PROCEDURE– UNLICENSED CONTRACTORS– Labor Code §2750.5 creates a rebuttable presumption that a worker who is working for a person who is required to be licensed, is an employee of the person for whom the work is being done. If the presumption applies, the general contractor is, for workers' compensation purposes, the employer of an unlicensed subcontractor's employee. (See generally, Blew v. Horner (1986) 187 Cal.App.3d 1380.) This presumption applies only if the subcontractor is required by the Business and Professions code to have a license. Sam Yamada v. Workers' Compensation Appeals Board, Even Quest dba Veeder Creative, Inc. 3 WCAB Rptr. 10,201
WCAB PROCEDURE– Substantial Medical Evidence– There must be a solid and reasonable basis in the medical report for the physician's final conclusion. It is not sufficient for the Appeals Board to blindly accept a medical opinion that lacks a solid underlying basis. Instead, the Appeals Board must carefully judge the report's weight and credibility; the evidence must have some degree of probative value. (See National Convenience Stores v. Workers' Comp. Appeals Bd. (Kesser) (1981) 120 Cal. App. 3d 420.) Accordingly, the Appeals Board must scrutinize the underlying facts relied upon by the physician, to determine whether or not his opinion constitutes substantial evidence. If the facts relied upon lack probative value, so does the medical report. (See Turner v. Workers' Comp. Appeals Bd. (1974) 42 Cal.App. 3d 1036.) Film Payment Services v. Workers' Comp. Appeals Bd. (Hal Needham) 5 WCAB Rptr. 10,262
WCAB PROCEDURE–Medical evidence of industrial causation–Where an issue is exclusively a matter of scientific medical knowledge, expert witness evidence is essential to sustain a finding of industrial causation. When causation is clearly not exclusively a matter of scientific medical knowledge, lay testimony to non-technical facts is sufficient to establish industrial causation. [In this case, a finding of an industrial injury was supported by the fact that applicant completely recovered from a nonindustrial injury and thereafter engaged in strenuous activities of firefighter and then sustained an industrial injury as alleged.] Total Fitness Sports Therapy v. Workers' Compensation Appeals Board (Ossiola Cantrell) 5 WCAB Rptr. 10,293
WCAB PRODEDURE–Substantial medical evidence–In this case, even assuming there was a discrepancy between the injured worker's testimony and his history provided to the qualified medical evaluators, the discrepancy pertains to the time of onset of applicant's symptoms. The QME found the condition to be industrial, given what he believed to be the onset of symptoms after the worker retired. It is illogical to suppose that the QME's opinion would be any different if he had obtained a history showing an earlier onset of symptoms and treatment. San Mateo County Transit District v. Workers' Compensation Appeals Board (John Mackie) 5 WCAB Rptr. 10,293
WCAB PROCEDURE–Substantial medical evidence–In this case, the applicant claimed injuries to her lumbar spine, left shoulder and left knee, but the treating physician had problems relating to the body parts claimed. A subsequent physician made no mention of reviewing any medical records but proceeded to complete treatment and opine as to factors of disability to the low back and left shoulder. Based on this record, the WCJ correctly found that the applicant did not sustain permanent disability to the body parts claimed as a result of a workplace incident. Evelyn Doneske v. Workers' Compensation Appeals Board, Long Beach Unified School District 5 WCAB Rptr. 10,294
WCAB PROCEDURE–Substantial medical evidence–A finding of psychiatric injury and disability must be based upon a psychiatric report. It is clear that the finder of fact may rely on a report that is in conflict with other reports, as long as the report is substantial evidence. [In this case, the treating psychiatrist made every effort to interview applicant and review his medical records. Applicant was completely uncooperative at every interview and refused to cooperate with the objective testing proposed by the psychiatrist. The reports of the psychiatrist when read together show a professional attempt to analyze a very difficult situation and determine applicant's diagnosis and thus to determine the appropriate course of treatment. The report of the psychiatrist that found applicant was a malingerer and had no permanent psychiatric disability or need for treatment was substantial evidence to support the WCJ's findings.] Ali Albaoul v. Workers' Compensation Appeals Board, ARCO 5 WCAB Rptr. 10,295
