ADJ11738998 — California WCAB decision

What the panel ordered

May 11, 2021 Amended Findings and Award affirmed by WCAB Decision After Reconsideration dated April 22, 2022.

Petition for Reconsideration filed by defendant Three D Plastics after May 11, 2021 Amended Findings and Award; WCAB granted reconsideration and issued Decision After Reconsideration affirming the WCJ's findings.

Read the official decision →

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 prevailedwrists · back · neck

The WCAB found substantial medical evidence in the AME Dr. Falkinstein's reports and deposition supporting that the applicant sustained cumulative trauma injury arising out of and in the course of employment with Three D Plastics, rejecting the alternative causation scenario and the QME Dr. Guellich's report as not substantial evidence.

From the decision · page 1Defendant ADP Total Source FLXVI, Inc., dba Three D Plastics, insured by American Home Assurance Company, administered by Helmsman Management Services, Inc. (Three D Plastics) seeks reconsideration of the May 11, 2021 Amended Findings and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a machinist from May 1, 2016 to January 13, 2019, sustained industrial injury to the wrists, back and neck, with all other body parts deferred. Applicant had concurrent employment during the alleged cumulative trauma with Vallarta Supermarkets (Vallarta) and with Three D Plastics. The WCJ found that the reporting of Agreed Medical Evaluator (AME) Yuri Falkinstein, M.D. constituted substantial medical evidence, and relying thereon, determined that applicant sustained injury arising out of and in the course of employment (AOE/COE), attributable solely to her employment with Three D Plastics.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

AME Dr. Falkinstein's detailed causation analysis based on applicant's work history and medical records

Favours Applicant prevailed

This analysis was found to be substantial medical evidence supporting injury causation from Three D Plastics employment.

From the decision · page 8Here, we find Dr. Falkinstein's thoughtful analysis to be substantial medical evidence. The AME takes a thorough history from applicant, including a detailed description of her work history and work activities for both employers. (Ex. X1, report of AME Yuri Falkinstein, M.D., dated March 1, 2019, at p.3.) The physician accomplished a competent clinical examination, and has detailed his findings over multiple reports. Dr. Falkinstein's opinion that applicant's work at Three D Plastics resulted in her injury, whereas applicant's work at Vallarta did not, is further explicated in detail at the doctor's June 20, 2020 deposition. (Ex. Y, transcript of the deposition of AME Yuri Falkinstein, M.D., June 22, 2020, at 32:5.) We also observe that while Dr. Falkinstein agreed that a formal job analysis of applicant's work for Vallarta and for Three D Plastics might alter his opinions, it is not axiomatic that his prior opinions on causation do not constitute substantial medical evidence without it. Rather, Dr.

QME Dr. Guellich's report lacked a formal job description and did not inquire fully into job duties

Favours Applicant prevailed

This deficiency led to the rejection of the QME's report as substantial medical evidence, favoring the applicant's position.

From the decision · page 7Further, the reporting of QME Dr. Guellich does not appear to have reached final opinions regarding the existence of a cumulative trauma injury, or its causation. As noted by Vallarta in its June 7, 2021 Answer, it does not appear that the QME inquired with applicant regarding her job duties for either employer. The QME notes that he became aware of the claimed cumulative trauma injury only after his clinical evaluation of applicant. (Answer of Vallarta, dated June 7, 2021, at 4:7.) Vallarta submits that "Dr. Guellich could not have formed a valid opinion on the issue of whether Applicant sustained cumulative trauma injury without knowing what her specific job duties were or taking a complete history," and as a consequence the QME reporting does not constitute substantial medical evidence. (Id. at 4:26.) We agree.

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.

AMERelied upon · orthopedics

Dr. Falkinstein opined that the applicant sustained cumulative trauma injury to the neck, bilateral wrists, and low back arising out of and in the course of employment with Three D Plastics, based on detailed work history, clinical examination, and medical literature. He rejected injury causation from Vallarta due to less strenuous work duties.

Dr. Falkinstein's opinion was found to be substantial medical evidence and was relied upon by the WCAB to affirm the injury causation finding.

From the decision · page 1Defendant ADP Total Source FLXVI, Inc., dba Three D Plastics, insured by American Home Assurance Company, administered by Helmsman Management Services, Inc. (Three D Plastics) seeks reconsideration of the May 11, 2021 Amended Findings and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a machinist from May 1, 2016 to January 13, 2019, sustained industrial injury to the wrists, back and neck, with all other body parts deferred. Applicant had concurrent employment during the alleged cumulative trauma with Vallarta Supermarkets (Vallarta) and with Three D Plastics. The WCJ found that the reporting of Agreed Medical Evaluator (AME) Yuri Falkinstein, M.D. constituted substantial medical evidence, and relying thereon, determined that applicant sustained injury arising out of and in the course of employment (AOE/COE), attributable solely to her employment with Three D Plastics.

QMERejected · orthopedics

Dr. Guellich diagnosed cervical and lumbar spine protrusions and wrist injuries but did not provide a definitive opinion on injury causation or cumulative trauma. His report was found not to constitute substantial medical evidence due to lack of job duty inquiry and incomplete history.

The WCAB found Dr. Guellich's report insufficient to establish causation due to lack of job description and incomplete inquiry, thus not substantial evidence.

From the decision · page 5Frank Guellich, M.D. acted as QME in orthopedics, as between applicant and Three D Plastics. The QME report of August 17, 2020 details Dr. Guellich's clinical examination and record review. The QME diagnosed applicant as being overweight; cervical spine protrusion, rule out disc degeneration; lumbar spine protrusion, rule out disc degeneration; right and left wrist injury, rule out ligamentous injury and possible triangular fibrocartilage tear. (Ex. BB, report of QME Frank Guellich, M.D., dated August 17, 2020, p.37.) The report did not specifically address injury AOE/COE with respect to the cumulative trauma claim, nor did it address causation as between Vallarta and Three D Plastics. Although the report ostensibly answered questions posed in the engagement letters submitted by the parties, the underlying questions do not appear to have been offered into evidence or recounted in the QME's reporting. Applicant was deemed temporarily totally disabled, with further reporting deferred pending diagnostic testing and the QME's receipt of a job description.

The rules the panel named

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

Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274

Substantial evidence standard for WCJ findings

The WCAB applied this standard to affirm the WCJ's reliance on the AME's opinion as substantial evidence.

From the decision · page 7It is, of course, well settled that all decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].) When the WCJ's findings are supported by solid, credible evidence, they are to be accorded great weight by the Board and rejected only on the basis of contrary evidence of considerable substantiality. (Lamb, supra; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500].) The trier of fact is empowered to choose among conflicting medical reports and rely on that which he deems most persuasive (Jones v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 476 [33 Cal.Comp.Cases 221]), for the considered opinion of one physician, though inconsistent with other medical reports, may constitute substantial evidence.

Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372

Considered opinion of one physician may constitute substantial evidence even if inconsistent with others

The WCAB relied on this principle to uphold the AME's opinion despite conflicting medical reports.

From the decision · page 8Falkinstein based his opinions on the sworn deposition testimony of applicant as well as his clinical assessment, a thorough record review and his professional medical judgment. Accordingly, we find the reporting of the AME to constitute substantial medical evidence. The WCJ properly relied upon the opinion of the agreed medical evaluator (AME), whom the parties presumably chose because of the AME's expertise and neutrality. The WCJ was presented with no good reason to find the AME's opinion unpersuasive, and we also find none. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775, 782 [51 Cal.Comp.Cases 114].) We observe, moreover, it is well-established that the relevant and considered opinion of one physician may constitute substantial evidence, even if inconsistent with other medical opinions. (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525].)

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Detailed work history and clinical examination by AME Dr. Falkinstein

From the decision · page 8Here, we find Dr. Falkinstein's thoughtful analysis to be substantial medical evidence. The AME takes a thorough history from applicant, including a detailed description of her work history and work activities for both employers. (Ex. X1, report of AME Yuri Falkinstein, M.D., dated March 1, 2019, at p.3.) The physician accomplished a competent clinical examination, and has detailed his findings over multiple reports. Dr. Falkinstein's opinion that applicant's work at Three D Plastics resulted in her injury, whereas applicant's work at Vallarta did not, is further explicated in detail at the doctor's June 20, 2020 deposition. (Ex. Y, transcript of the deposition of AME Yuri Falkinstein, M.D., June 22, 2020, at 32:5.) We also observe that while Dr. Falkinstein agreed that a formal job analysis of applicant's work for Vallarta and for Three D Plastics might alter his opinions, it is not axiomatic that his prior opinions on causation do not constitute substantial medical evidence without it. Rather, Dr.

Medical recordsfavours Defendant prevailed

Lack of formal job description and incomplete inquiry by QME Dr. Guellich

From the decision · page 7Further, the reporting of QME Dr. Guellich does not appear to have reached final opinions regarding the existence of a cumulative trauma injury, or its causation. As noted by Vallarta in its June 7, 2021 Answer, it does not appear that the QME inquired with applicant regarding her job duties for either employer. The QME notes that he became aware of the claimed cumulative trauma injury only after his clinical evaluation of applicant. (Answer of Vallarta, dated June 7, 2021, at 4:7.) Vallarta submits that "Dr. Guellich could not have formed a valid opinion on the issue of whether Applicant sustained cumulative trauma injury without knowing what her specific job duties were or taking a complete history," and as a consequence the QME reporting does not constitute substantial medical evidence. (Id. at 4:26.) We agree.

ADJ11738998 · April 22, 2022