What the panel ordered
Petition for Reconsideration denied.
Defendant seeks reconsideration of the Opinion and Decision After Reconsideration issued November 23, 2021, which rescinded the April 13, 2021 Findings and Order and found injury arising out of and in the course of employment on January 30, 2020.
This docket was decided more than once. Shown here is the latest released decision; we also hold November 23, 2021.
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.
The Board found substantial evidence that the applicant sustained injury AOE/COE to her low back including lumbar radiculopathy to her left leg, rejecting the defense argument that the injury was not work-related based on the QME report and pre-existing condition.
From the decision · page 1Defendant seeks reconsideration of the Opinion and Decision After Reconsideration, issued by the Workers' Compensation Appeals Board on November 23, 2021, wherein we rescinded the April 13, 2021 Findings and Order and substituted a new Findings and Order, finding that on January 30, 2020, applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her low back including lumbar radiculopathy to her left leg, and deferring all other issues regarding the injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained injury arising out of and in the course of employment to her low back including lumbar radiculopathy to her left leg on January 30, 2020.
Favours Applicant prevailed
This fact was determinative because the Board found substantial evidence supporting injury causation and rejected the defense QME report that attributed symptoms solely to a pre-existing condition.
From the decision · page 1Defendant seeks reconsideration of the Opinion and Decision After Reconsideration, issued by the Workers' Compensation Appeals Board on November 23, 2021, wherein we rescinded the April 13, 2021 Findings and Order and substituted a new Findings and Order, finding that on January 30, 2020, applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her low back including lumbar radiculopathy to her left leg, and deferring all other issues regarding the injury.
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.
Diagnosed acute low back pain with S1 radiculopathy linked to heavy lifting at work; supported causality.
Report supported causality and was credited over QME report.
From the decision · page 2On May 5, 2020, applicant was seen at the Woodland Clinic by Sammy J. Almashat, M.D. (App. Exh. 3, Sammy J. Almashat, M.D., May 5, 2020.) Dr. Almashat diagnosed applicant as having "Acute low back pain (S1 radiculopathy)" and stated:
Opined that symptoms were not the result of a specific incident on 01/30/20 but related to a pre-existing chronic degenerative lumbar spine condition.
Did not explain why symptoms and ongoing treatment after 01/30/20 did not constitute aggravation of pre-existing condition; did not explain why pain was solely from pre-existing condition and unrelated to work.
From the decision · page 2On July 14, 2020, applicant was evaluated by chiropractic qualified medical examiner (QME) Perry J. Carpenter, D.C. (Joint Exh. ZZ, Perry J. Carpenter, D.C., July 17, 2020.) In his report Dr. Carpenter stated:
Noted onset of pain about 2 weeks prior to evaluation, triggered by lifting at work; supported industrial injury causation.
Treated applicant and supported injury causation; report credited over QME report.
From the decision · page 2Rigoberto Barba, M.D., became applicant's primary treating physician (PTP) on February 4, 2020. (App. Exh. 2, Rigoberto Barba, M.D., February 4, 2020.) Dr. Barba noted:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 617
An aggravation of a pre-existing condition is compensable as an injury arising out of and in the course of employment.
The Board applied this standard to find that the applicant's symptoms and ongoing treatment after the injury date constituted an aggravation of the pre-existing lumbar spine condition, thus compensable.
From the decision · page 3As noted in our Opinion, there appears to be no dispute as to whether applicant had a pre- existing degenerative lumbar spine condition. However, the acceleration, aggravation or `lighting up' of a pre-existing condition "is an injury in the occupation causing the same." (Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 617 [1935 Cal. LEXIS 590]; Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794 [33 Cal.Comp.Cases 358]; Reynolds Electrical & Engineering Co. v. Workers' Comp. Appeals Bd. (Buckner) (1966) 65 Cal.2d 438 [31 Cal.Comp.Cases 421].) Further, as we explained, Dr. Carpenter did not explain why the increase in applicant's symptoms, and the ongoing medical treatment, subsequent to the January 30, 2020 incident, did not constitute an aggravation of the pre-existing lumbar spine condition. Nor did he explain why he disagreed with the conclusions of the treating physicians who repeatedly stated that applicant had sustained an industrial injury to her lumbar spine. Also, Dr. Carpenter noted that applicant was able to work for defendant for one year and two months prior to the January 30, 2020 incident (Joint Exh. ZZ, p.16 [EAMS p. 27]) and after that incident she could not work due to pain, but he did not explain why the pain was caused solely by the pre-existing condition and was not in any way related to applicant's work for defendant. (See Opinion, p. 6.)
What proof carried it
The evidence the panel weighed, by kind.
Medical reports from treating physicians Dr. Barba and Dr. Almashat supporting industrial injury causation.
From the decision · page 2Rigoberto Barba, M.D., became applicant's primary treating physician (PTP) on February 4, 2020. (App. Exh. 2, Rigoberto Barba, M.D., February 4, 2020.) Dr. Barba noted:
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About this page
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