Authorities as the decision cited them, with how this panel applied each one.
Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241
Rolda v. Pitney Bowes (2001) 66 Cal.Comp.Cases 241
Referenced by Dr. Marusak in causation analysis of personnel actions.
From the decision · page 2In considering causation from an industrial standpoint: causation is 80% to the
perceived versus actual stress and harassment in the workplace; and 20% due to
personnel actions which were not a substantial cause (40%) of her psychiatric
injury. (i.e. the three counseling letters, which were all similarly and equally
distressing to her, as well as the three yearly evaluations that states she needed
improvement.) Thus, in regard to the Rolda analysis an equal percentage would
be given to each of the six personnel actions at work (3 counseling letters and
the three end of year evaluations). 20% causal was to the non-substantial
personnel actions, the ultimate nature of which resides in the purview of the
Trier-of-Fact in this case.
(App. Exh. 2, Susan L. Marusak, M.D., March 8, 2021, p. 28.)1
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
Medical opinion must be based on pertinent facts, adequate examination, and accurate history to constitute substantial evidence.
The WCJ found the medical opinion was not based on an accurate history and thus not substantial evidence.
From the decision · page 4Based on our review of the record, it is clear that the history Dr. Marusak was given was
not consistent with the testimony of the three witnesses taken over the course of the six trial dates.
As noted, one of the requirements for a doctor's report, and the opinions stated in the report, to
constitute substantial evidence is that it be based on an accurate history. (Escobedo v. Marshalls,
supra.) As noted, in this matter, Dr. Marusak was given a history that was not consistent with the
witnesses' trial testimony. Thus, her opinions do not appear to be based on an accurate history,
and in turn her opinions do not constitute substantial evidence. Also as noted, a trial record, upon
which a decision as to whether an applicant sustained a cumulative injury is based, must include
an expert medical opinion that constitutes substantial evidence.
Lab. Code, §§5701, 5906; 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 discretionary authority to develop the record when the medical record is not substantial evidence or insufficient to determine an issue.
The WCAB remanded for further proceedings to develop substantial evidence.
From the decision · page 4The Appeals Board has the discretionary authority to develop the record when the medical
record is not substantial evidence or where there is insufficient evidence to determine an issue.
(Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62
Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117,
1121-1122 [63 Cal.Comp.Cases 261].) Normally, when the medical record requires further
development, the record should first be supplemented by physicians who have already reported in
the case. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67
Cal.Comp.Cases 138 (Appeals Board en banc).) It appears that under the circumstances of this
matter, Dr. Marusak must be provided a copy of the WCJ's summary of the testimony of each trial
witness, and that she be asked to submit a supplemental report addressing the issue of psychiatric
injury AOE/COE. We, therefore, recommend that the WCJ schedule a status conference in order
to facilitate the parties' further development the record, and to assure that it contains substantial
evidence upon which the issues submitted for decision may be decided.