ADJ12973629 · March 11, 2024

The WCAB found inconsistencies in applicant's history, job duties, and medical reports, concluding the record lacked substantial evidence to support the WCJ's denial of injury AOE/COE, warranting further development of the record.

From the decision · page 6Having reviewed the trial record, we agree with the WCJ that there are several inconsistencies in the information provided to the various doctors whose reports were admitted into evidence. Also, the job duties described by the doctors are quite inconsistent with those identified in the Usual and Customary Job Description. (Def. Exh. F.)2 Based thereon, we cannot determine the accuracy of the doctors' reports that were admitted into evidence, and in turn the reports are not substantial evidence.

Inconsistencies in applicant's history, job duties, and medical reports

Favours neutral

These inconsistencies prevented the Board from determining the accuracy of the medical reports, leading to the conclusion that the reports were not substantial evidence to support the WCJ's denial of injury AOE/COE.

From the decision · page 6Having reviewed the trial record, we agree with the WCJ that there are several inconsistencies in the information provided to the various doctors whose reports were admitted into evidence. Also, the job duties described by the doctors are quite inconsistent with those identified in the Usual and Customary Job Description. (Def. Exh. F.)2 Based thereon, we cannot determine the accuracy of the doctors' reports that were admitted into evidence, and in turn the reports are not substantial evidence.

Applicant's inconsistent reports of pain and physical abilities observed at trial

Favours Defendant prevailed

The inconsistencies in applicant's complaints and observed behavior were significant in assessing credibility and injury causation, favoring the defense's position that no industrial injury occurred.

From the decision · page 5Dr. Rapoff stated (Exhibit C, page 21); However, during the examination, I observed conflicting actions by the applicant that contradict his belief of "severe impairment." For example, the applicant indicated during the interview that he was only able to sit for very short period of time due to lower back pain with prolonged sitting. In contrast to this, he sat for nearly 2 hours during the face-to-face interview without distress or need for position change. In addition, the applicant stated that he had difficulty picking up objects and writing due to hand pain/weakness. However, the Bilateral Grip Strength testing during the physical examination demonstrated a satisfactory grip.

Described applicant's job duties involving heavy lifting, bending, twisting, and physical labor.

From the decision · page 2He indicates that his job duties included palletizing, lifting boxes and warehouse duties. He would lift water bottles each weight from 25 to 50 pounds from conveyor belt and placed on to the floor on the palate and build it up to 70 boxes- bottle case per palate and would palatalize 10-12 palate. ln addition, he would lift 70 to 100 of 30-50 pound palates [sic] and carry to locations. He always walks around, being on his feet, reaching down to floor levels, forward or reach at shoulder or above levels while lifting, pulling pushing with light gripping. He requires bending, turning, twisting with neck and back. (App. Exh. 22, Mohammad Reza Rockny Mojabe, D.C., March 4, 2020, p. 1.)

Concluded applicant did not suffer an industrial injury to multiple body parts; noted inconsistencies in applicant's reported symptoms and observed behavior.

The WCJ and WCAB found Dr. Rapoff's observations of inconsistencies in applicant's complaints and behavior significant in assessing credibility and injury causation.

From the decision · page 3In my opinion, with reasonable medical probability, the applicant did not suffer an industrial injury either specific or cumulative - while employed with Corporate Packing Inc. to his 1) neck, 2) left shoulder, 3) right shoulder, 4) left arm, 5) right arm, 6) left wrist, 7) right wrist, 8) low back, 9) left knee, 10) right knee, 11) left ankle 12) right ankle. (Def. Exh. C, p. 71; see also Def. Exh. A, pp. 78 § 81.)

Found applicant had 21% whole person impairment due to cumulative injury; disagreed with QME that no industrial injury occurred.

Dr. Furman's opinion was considered substantial evidence supporting injury AOE/COE, contrasting with Dr. Rapoff's opinion.

From the decision · page 4have reached maximum medical improvement. He stated applicant's "whole person impairment rating is 21%" and that it was "a direct result of the cumulative injury." (App. Exh. 14, pp. 16 - 18.)

Labor Code Sections 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has the authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues submitted for decision.

The Board exercised its authority to grant reconsideration and return the matter to the WCJ for further development of the record due to lack of substantial evidence.

From the decision · page 6The Appeals Board has the authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues submitted for decision. (Lab. Code § 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd., (2000) 79 Cal.App.4th 396 [65 Cal.Comp.Cases 264] Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].)

Inconsistencies in applicant's history, job duties, and medical reports

From the decision · page 6Having reviewed the trial record, we agree with the WCJ that there are several inconsistencies in the information provided to the various doctors whose reports were admitted into evidence. Also, the job duties described by the doctors are quite inconsistent with those identified in the Usual and Customary Job Description. (Def. Exh. F.)2 Based thereon, we cannot determine the accuracy of the doctors' reports that were admitted into evidence, and in turn the reports are not substantial evidence.

Applicant's inconsistent reports of pain and physical abilities observed at trial

From the decision · page 5Dr. Rapoff stated (Exhibit C, page 21); However, during the examination, I observed conflicting actions by the applicant that contradict his belief of "severe impairment." For example, the applicant indicated during the interview that he was only able to sit for very short period of time due to lower back pain with prolonged sitting. In contrast to this, he sat for nearly 2 hours during the face-to-face interview without distress or need for position change. In addition, the applicant stated that he had difficulty picking up objects and writing due to hand pain/weakness. However, the Bilateral Grip Strength testing during the physical examination demonstrated a satisfactory grip.