ADJ11994224 · May 23, 2025

The WCJ's findings of 49% permanent partial disability and a 15% attorney fee were supported by substantial evidence including agreed medical reports and surveillance evidence, and were upheld on reconsideration.

From the decision · page 6In my F&A, I followed the reports of the Agreed Medical Evaluators. I found that applicant suffered injury arising from and within the course and scope of employment to his head, neck, back, right wrist, right knee, cognitive and vestibular systems. The injury resulted in 49% partial permanent disability, based on the formal permanent disability rating of the agreed medical reports. I awarded a 15% attorney fee to applicant attorney from the 49% indemnity awarded. I awarded applicant's permanent partial indemnity, less the attorney fee and less the temporary total indemnity overpayment.

The WCAB panel found the petition was timely filed and properly served, but the substantial evidence supported the original Findings of Fact and Award, so the petition was denied.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, we will deny reconsideration.

Surveillance videos showed applicant engaged in significant physical activity inconsistent with his statements about physical limitations.

Favours Defendant prevailed

This evidence undermined applicant's credibility and supported the medical opinions revising the permanent disability rating.

From the decision · page 7I acknowledge that surveillance videos show brief periods of activity. Here, however, the doctors' reviewed surveillance taken over the course of three separate days. It showed applicant involved in significant physical activity including painting, landscaping and tile work. The activities shown were inconsistent with applicant's statements about his physical abilities. I am convinced that the physicians had a valid basis for their opinions. The parties had the opportunity to cross-examine the physicians by way of deposition and supplemental reports. There were numerous supplemental reports and one physician deposition taken.

The WCJ's credibility determination of applicant's testimony was given great weight due to the opportunity to observe demeanor.

Favours Defendant prevailed

The WCJ's credibility findings supported the denial of reconsideration and upheld the permanent disability rating.

From the decision · page 3Additionally, we have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)

Evaluated applicant, initially reported permanent and stationary condition, revised permanent disability description after surveillance contradicted applicant's statements, supporting 49% permanent partial disability.

Relied on surveillance video evidence and applicant's statements, revised opinion accordingly.

From the decision · page 6Dr. Barber evaluated applicant on February 2, 2020. She reported that his condition was permanent and stationary on that date. (Joint exhibit 4). After reviewing medical records, she issued a report on April 7, 2020 (Joint exhibit 3) describing applicant's permanent disability. Dr. Barber relied upon applicant's statements regarding his physical limitations. After Dr. Barber issued those reports, defendants sent surveillance video taken of applicant in October 2019 to Dr. Barber which contradicted applicant's statements regarding his physical limitations. Accordingly, Dr. Barber issued a supplemental report on October 16, 2020. She revised her description of applicant's permanent disability and stated that his condition was permanent and stationary at the time he performed the physical activities on October 17, 2019 (Joint exhibit 1). Defendants paid temporary disability indemnity through March 2, 2020. Defendants sought and I found a temporary disability indemnity overpayment from October 17, 2019 through March 2, 2020.

Reviewed surveillance videos and medical records, supported substantial evidence of permanent disability and permanent and stationary date.

Reviewed surveillance and medical records, concurred with other AMEs.

From the decision · page 6I relied on the reports of three separate agreed medical evaluators who reviewed the surveillance videos (Barber, Weiss and Cole). Each doctor took a history, reviewed all the pertinent records, conducted a physical examination and issued a comprehensive medical legal report. The

Reviewed surveillance videos and medical records, supported substantial evidence of permanent disability and permanent and stationary date.

Reviewed surveillance and medical records, concurred with other AMEs.

From the decision · page 6I relied on the reports of three separate agreed medical evaluators who reviewed the surveillance videos (Barber, Weiss and Cole). Each doctor took a history, reviewed all the pertinent records, conducted a physical examination and issued a comprehensive medical legal report. The

Part of the agreed medical evaluation team whose reports were relied upon for permanent disability findings.

Part of agreed medical evaluation team.

From the decision · page 5The evidence at trial consisted of Agreed Medical Reports from: an orthopedist Victoria Barber, M.D.; a neuropsychologist James Cole, Ph.D.; a neurologist, Jacqueline Weiss, M.D.; and an ENT physician Joel Ross, M.D. Additionally, there was a transcript of Dr. Barber's deposition and a medical report offered by defendant regarding an injury which occurred after the instant industrial injury. Applicant testified. I did not find applicant's testimony persuasive. I summarized the evidence in my Opinion on Decision.

E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928

A medical opinion must be framed in terms of reasonable medical probability, based on an adequate examination and history, not speculative, and must set forth reasoning to support conclusions.

The WCAB reviewed the medical opinions for substantial evidence and proper reasoning.

From the decision · page 2II. A medical opinion must be framed in terms of reasonable medical probability, it must be based on an adequate examination and history, it must not be speculative, and it must set forth reasoning to support the expert conclusions reached. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687];

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc)

Medical reports and opinions are not substantial evidence if based on erroneous facts, inadequate histories, or speculation.

The WCAB found the medical reports in this case were substantial evidence, not speculative or erroneous.

From the decision · page 3Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319

The WCAB must give great weight to the WCJ's credibility determinations based on witness demeanor.

The WCAB gave great weight to the WCJ's credibility findings regarding applicant's testimony.

From the decision · page 3Additionally, we have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)

Labor Code section 5909

Labor Code section 5909 requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

The WCAB found the petition was timely acted upon within the 60-day period.

From the decision · page 1I. Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Labor Code section 5905

Labor Code section 5905 requires service of the petition for reconsideration on former counsel if attorney fees are at issue.

The WCAB noted applicant failed to serve former counsel, but separately served them to comply with the statute.

From the decision · page 3Finally, we note that applicant failed to serve his former counsel with his Petition for Reconsideration. Since applicant raises the issue of the amount of attorney's fees to be paid to his attorneys, this is an error in violation of Labor Code section 5905. Thus, we separately serve a copy of applicant's Petition on his former attorneys.

Title 8, California Code of Regulations, section 10844

Title 8, California Code of Regulations, section 10844 allows attorney fees up to 15% for above average complexity cases.

The WCJ awarded a 15% attorney fee based on case complexity and upheld it on reconsideration.

From the decision · page 7Accordingly, the findings regarding permanent disability and permanent and stationary date are supported by substantial evidence. Applicant also contends that I erred in the calculation of the attorney fee. I awarded a 15% attorney fee on the partial permanent disability indemnity awarded. Pursuant to Title 8, California Code of Regulations, section 10844, I considered that this was a case of above average complexity. It involved multiple body parts, multiple medical evaluations with many supplemental reports and one medical deposition. Despite strong surveillance evidence, applicant obtained a 49% partial permanent disability award. Applicant counsel represented applicant for many years, ultimately representing applicant at trial. Applicant presents no authority for his proposition that "the calculation should focus on ensuring that the 15% fee is derived from the total remaining compensation, after deductions for temporary disability overpayment. The attorney fee is reasonable. Here the temporary disability overpayment stemmed from applicant's own statements to the physician's which were inconsistent with applicant's conduct as revealed on surveillance video. Applicant counsel earned the fee awarded. The award is based on substantial evidence.

Surveillance videos showing applicant engaged in significant physical activity inconsistent with his statements about physical limitations.

From the decision · page 7I acknowledge that surveillance videos show brief periods of activity. Here, however, the doctors' reviewed surveillance taken over the course of three separate days. It showed applicant involved in significant physical activity including painting, landscaping and tile work. The activities shown were inconsistent with applicant's statements about his physical abilities. I am convinced that the physicians had a valid basis for their opinions. The parties had the opportunity to cross-examine the physicians by way of deposition and supplemental reports. There were numerous supplemental reports and one physician deposition taken.

WCJ's credibility determination of applicant's testimony, given great weight due to opportunity to observe demeanor.

From the decision · page 3Additionally, we have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)