ADJ12245760 · April 11, 2022

Applicant failed to prove injury AOE/COE; no medical evidence supported cumulative trauma or specific injury; applicant had ample time to obtain evidence but did not; petition for reconsideration denied on merits.

From the decision · page 3Applicant claimed injury AOE/COE to his neck, right arm, and right shoulder, while employed during the period from 1/1/08 through 1/8/19 as a mechanic, at Gonzales, California, by BC Labor Contractors, Inc., then insured by Star Insurance Company.

Applicant failed to provide medical evidence supporting injury AOE/COE or cumulative trauma claim.

Favours Defendant prevailed

Without medical evidence, the Board found no industrial causation and denied the petition for reconsideration.

From the decision · page 4Later, Dr. Van Dolson found insufficient evidence to support an industrially-caused cumulative trauma. "In sorting through my prior reports, I am reminded that in my Supplemental Report dated March 8, 2020, I had concluded, based on medical probability principles, that there was insufficient evidence of cumulative trauma injury to the right shoulder or specific work injury on January 1, 2008 [sic]. [] Based on this additional information, my opinion in regard to causation remains unchanged. This MRI demonstrates evidence of definitive right shoulder pathology. However, based on the information available to me, I am not able to determine that this was caused by a work injury." (JOINT EX. J-1: QME Report, Leo Van Dolson, M.D., 3/4/21, p. 2.)

Applicant's counsel admitted no medical records were available and applicant could not remember injury date.

Favours Defendant prevailed

This lack of evidence and memory undermined applicant's claim and supported denial of reconsideration.

Initially found injury to right shoulder on 1/1/18 based on applicant's history; later found insufficient evidence for cumulative trauma or specific injury causation; MRI showed right shoulder pathology but not industrially caused.

The QME's opinion was relied upon to find no industrial causation for the injury and to deny the petition for reconsideration.

From the decision · page 3The Application alleging a CT through 1/8/19 was filed on 6/1/19. (EAMS Doc ID: 29390397.) Applicant was evaluated on 11/5/19 by QME Dr. Leo Van Dolson. (JOINT EX. J-6: QME Report, Leo Van Dolson, M.D., 12/20/19 [correction: 12/2/19].) Applicant gave a history consistent with a specific injury

Labor Code sections 5900(a), 5903; California Code of Regulations, title 8, section 10605(a)(1)

Labor Code section 5900(a), 5903, and Cal. Code Regs., tit. 8, 10605(a)(1) regarding timeliness of petition for reconsideration.

The Board found the petition timely filed due to service rules extending filing time.

From the decision · page 1Contrary to the WCJ, we find applicant's petition timely filed. There are 20 days allowed within which to file a petition for reconsideration from a "final" decision. (Lab. Code, § 5900(a), 5903.) This time is extended by 10 calendar days if service is made to an address outside of California but within the United States. (Cal. Code Regs., tit. 8, § 10605(a)(1).) While applicant and her attorney received service of the decision within California, defendant was served at an address outside of California. Accordingly, and to observe due process for all parties, we interpret Rule 10605 as extending the time to file for all parties being served. Nevertheless, while we find the petition timely we deny it on the merits for the reasons stated in the WCJ's Report.

Labor Code sections 3202.5, 5502(d)(3)

Labor Code section 3202.5 and 5502(d)(3) regarding evidentiary burden and admissibility of evidence after settlement conference.

Applicant failed to meet evidentiary burden and did not obtain evidence timely; evidence after MSC inadmissible.

From the decision · page 5Applicant had had ample time to obtain the medical evidence necessary to prove his case and to file a second Application alleging a specific injury. He did not. "As the Board concluded, Labor Code section 3202.5 expressly provides that the Labor Code section 3202 rule of liberal construction shall not relieve a party from meeting the evidentiary burden of proof by a preponderance of the evidence." (Rogers v. W.C.A.B. (1985) 172 Cal.App.3d 1195, 1202; 50 Cal. Comp. Cases 550.) Applicant also failed to demonstrate that the evidence he seeks "was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference." Without such a showing, any evidence not disclosed or obtained after the MSC shall be inadmissible. (Lab. Code, § 5502(d)(3).)

Applicant's counsel admitted no medical records were available; applicant could not remember injury date and kept reinjuring himself; no medical evidence supported injury claim.