ADJ10340076 — California WCAB decision

What the panel ordered

Prior Finding and Order rescinded; new Findings of Fact substituted finding injury arising out of and in the course of employment to right arm and right elbow; issue of attorney fees deferred

Petition for Reconsideration granted; prior WCJ Finding and Order of September 24, 2021, rescinded and replaced by this Decision After Reconsideration

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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 prevailedright arm · right elbow

The WCAB found the reporting of PTP Dr. Maywood to be more well-reasoned and persuasive than the AME Dr. Chun's opinion, which was unpersuasive due to reliance on applicant's failure to report symptoms earlier and lack of explanation for nonindustrial causation; applicant's credible testimony and medical records supported injury AOE/COE to right arm and elbow.

From the decision · page 111. applicant, while employed during the period of January 23, 1999 to February 23, 2016, as an officer, Occupational Group Number 490, at Riverside County, California, by State of California Highway Patrol, claims to have sustained injury arising out of and in the course of employment to the right arm and right elbow.

The facts that decided it

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERejected · orthopedic medicine

Diagnosed right elbow lateral epicondylitis with nonindustrial causation; found no rational mechanism of industrial injury; opinion unpersuasive due to reliance on applicant's failure to report symptoms earlier and lack of explanation.

AME opinion was found unpersuasive because it relied on applicant's failure to report symptoms during prior evaluation and lacked reasonable explanation for nonindustrial causation.

From the decision · page 3On June 20, 2016, defendant denied all liability for applicant's claim. On July 26, 2016, AME Dr. Chun evaluated applicant and noted a history of right elbow pain developing in March, 2015, followed by treatment including cortisone injections to the right elbow in March, 2015 and again in October, 2015. Applicant experienced pain relief from both injections. (Ex. C, Report of Keola Chun, M.D., dated July 26, 2016, at p. 2.) Applicant further reported that in February, 2016, "he was training at the gun range and noted that he could not hold his weapon straight because of right elbow pain." (Ibid.) Following a clinical evaluation of applicant, Dr. Chun diagnosed right elbow lateral epicondylitis with nonindustrial causation, stating:

PTPRelied upon · orthopedic medicine

Attributed right elbow injury to cumulative trauma from work duties; found injury arising out of and in the course of employment; opinion was more well-reasoned and persuasive than AME's.

PTP opinion was credited as more substantial and persuasive medical evidence supporting injury AOE/COE to right arm and elbow.

From the decision · page 2On April 12, 2016, PTP Dr. Maywood issued an initial orthopedic evaluation report. Therein, he noted applicant's complaints of a "cumulative trauma injury to the right elbow while performing his usual and customary duties for the California Highway Patrol... [applicant] attributes the onset of his symptoms to overuse of the right arm due to inability to use the left arm from a previous injury in April 2011." (Ex. 6, Report of Robert Maywood, M.D., dated April 12, 2016, p. 1.) Applicant was noted to have reported his right elbow symptoms to his employer on February 23, 2016. (Id. at p. 2.) Dr. Maywood extensively catalogued applicant's job duties and noted that his clinical evaluation of applicant was positive for tenderness over the right lateral epicondyle, and pain on resisted wrist extension. (Id. at p. 3.) Dr. Maywood diagnosed a right elbow possible chondral lesion and right elbow cubital tunnel syndrome. Applicant was referred for an MRI study. (Id. at p. 4.)

The rules the panel named

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

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d.312, 317

Award must be supported by substantial evidence in light of entire record

WCAB decision must be supported by substantial evidence

From the decision · page 6Finally, "although the board is empowered to resolve conflicts in the evidence [citations], to make its own credibility determinations [citations], and upon reconsideration to reject the findings of the [WCJ] and enter its own findings on the basis of its review of the record [citations], nevertheless, any award, order or decision of the board must be supported by substantial evidence in the light of the entire record. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d.312, 317 [35 Cal.Comp.Cases 500].)

Lab. Code 3202.5, 5705

Applicant bears burden of proving industrial injury by preponderance of evidence

Applicant must prove injury AOE/COE to right arm and elbow by preponderance of evidence

From the decision · page 5We begin our discussion by framing several legal principles applicable to the dispute at bar. Initially, we note that applicant bears the burden of establishing an industrial injury by a preponderance of the evidence. (Lab. Code § 3202.5, 5705; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases 660].) We further observe that the parties to this matter have selected an AME, and that we will ordinarily follow the opinion of an AME because it is presumed the AME was chosen by the parties because of his or her expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782

Opinion of AME is ordinarily followed as expert neutral opinion chosen by parties

AME opinion is given consideration but WCAB is ultimate trier of fact and may reject AME opinion if unpersuasive

From the decision · page 5We begin our discussion by framing several legal principles applicable to the dispute at bar. Initially, we note that applicant bears the burden of establishing an industrial injury by a preponderance of the evidence. (Lab. Code § 3202.5, 5705; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases 660].) We further observe that the parties to this matter have selected an AME, and that we will ordinarily follow the opinion of an AME because it is presumed the AME was chosen by the parties because of his or her expertise and neutrality. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].)

Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1522; Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal. App.3d 784, 792-793

WCAB is ultimate trier of fact and may reject AME opinion if unpersuasive

WCAB may reject AME opinion and make its own findings based on record review

From the decision · page 5However, we also observe that it is the WCAB, and not the AME, that is the ultimate trier- of-fact. (See Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1522 [54

San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 937-938

WCAB has duty to develop record if insufficient evidence on threshold issue

WCAB may develop record in favor of employee if no substantial evidence presented

From the decision · page 9Under these circumstances, the WCAB "may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based, and even that this principle may be appropriately applied in favor of the employee." (San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 937-938 [64 Cal.Comp.Cases 986].) This is because the WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on a threshold issue. (Lab. Code, § 5701, 5906; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Bd. en banc); Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924].)

ADJ10340076 · December 22, 2025

What the panel ordered

What was disputed, and how it came out

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What the panel did with the medical opinions

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