ADJ15337248 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Applicant after Findings and Order issued on February 17, 2023, seeking reconsideration of denial of cumulative trauma injury claim.

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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.

Cumulative traumaDefendant prevailedright knee

The WCJ found the Applicant credible but the medical evidence, particularly the substantial and persuasive opinion of PQME Dr. Hall, did not support a finding of a new cumulative trauma injury. Other medical reports were either conclusory or predated the alleged injury period and did not establish causation. The Applicant failed to meet the evidentiary burden of proof for the cumulative trauma injury claim.

From the decision · page 3III. FACTS the applicant, hereinafter Applicant, alleged a cumulative trauma to his right knee arising out of and in the course of his employment for Southern California Edison in Bishop, California during the period September 10, 2020 through September 10, 2021. An application for adjudication consistent with the above was filed dated October 20, 2021. The matter proceeded to Trial on January 10, 2023 on issues of whether the Applicant was entitled to a replacement PQME or further development of the record prior to proceeding to Trial on AOE/COE and injury arising out of and in the course of employment. Documentary evidence was received and the Applicant testified on his own behalf. The matter was submitted on January 10, 2023. On February 17, 2023 a Findings and Order issued, as well as an Opinion on Decision. By verified Petition for Reconsideration dated and filed on March 14, 2023, Applicant, by and through his attorney of record, Mark A. Vickness, seeks reconsideration. Defendant, by and

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

PQME Dr. Jerome Hall opined the Applicant did not sustain a new cumulative trauma injury but is dealing with sequelae of a prior injury from 2012.

Favours Defendant prevailed

This opinion was found substantial medical evidence and more persuasive than other evidence, leading to denial of the cumulative trauma claim.

From the decision · page 4Where there is conflicting evidence, it is well-settled that the WCJ may choose the most appropriate and convincing evidence among conflicting medical evidence. (Place v. WCAB (1970) 3 Cal. 3d 372, 378.) Therefore, the undersigned turns to the medical evidence offered in support of the Applicant's alleged cumulative trauma injury. The parties jointly offered the reporting of PQME Dr. Jerome Hall dated March 11, 2022 and his deposition from July 12, 2022 which was discussed in depth in the Opinion on Decision dated February 17, 2023. (Joint Exhibits Y and X.) Dr. Hall opined the Applicant "is simply dealing with the sequelae of his previous injury from July 25, 2012, and that currently he has not sustained a new injury work related to his right knee." (Joint Exhibit Y page 16.) A report may be considered substantial evidence even if the doctor does not explicitly use the term "reasonable medical probability." (See Bates v. WCAB (2012) 77 CCC 636 (writ denied); McKinney v. WCAB (2014) 79 CCC 1456 (writ denied).) The undersigned found the reporting of Dr. Hall is found to

Medical reports from Mammoth Hospital and Dr. Doty were conclusory or predated the alleged injury period and did not establish causation for a new injury.

Favours Defendant prevailed

These reports were found not substantial or persuasive, supporting denial of the cumulative trauma claim.

From the decision · page 5Applicant also offered a report from Brittania Cogin, PA-C at Mammoth Hospital dated September 10, 2021 (Applicant Exhibit 4). Applicant asserts the report from Mammoth Hospital dated September 10, 2021 alone constitutes substantial medical evidence of a cumulative trauma injury. However, while the September 10, 2021 report from Mammoth Hospital does conclude there is a "work injury" the report does not offer any explanation as to when this "injury" occurred and does not support a finding of a cumulative trauma as alleged by the Applicant. A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. WCAB (1968) 33 CCC 647, 653; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687, 1691.) The report captures the Applicant's recitation of his symptoms which support he is having pain in his right knee. However, the reporting from examiner Cogin is conclusory and does not discuss causation beyond stating there is a "work injury." The undersigned did not find the September 10, 2021 report from Mammoth Hospital to be substantial medical evidence or even persuasive evidence as it was conclusory and did not specifically state the Applicant sustained a cumulative trauma injury.

Applicant's attorney participated in the deposition of Dr. Hall within the required timeframe and waived objections to timeliness, negating entitlement to replacement PQME.

Favours Defendant prevailed

This procedural fact led to denial of the replacement PQME claim.

From the decision · page 7earliest date available for a deposition was October 11, 2022 which is 141 days after the date of notice. However, Joint Exhibit X shows that the deposition of Dr. Jerome Hall went forward on July 12, 2022 which was only 78 days from the notice date. Furthermore, the deposition of Dr. Hall did go forward on July 12, 2022, which was after the Petition for Appointment of Replacement PQME was filed. Considering Applicant's Attorney proceeded with the deposition, he is deemed to have waived his objections with respect to the timeliness of the deposition of Dr. Hall. Since Applicant's Attorney participated in the deposition, within the required timeframe, it would not be equitable to allow a replacement PQME simply because Applicant does not agree with the conclusions expressed within the deposition.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Place v. WCAB (1970) 3 Cal. 3d 372, 378

A WCJ may choose the most appropriate and convincing evidence among conflicting medical evidence.

Applied to weigh conflicting medical evidence regarding cumulative trauma injury.

From the decision · page 4Where there is conflicting evidence, it is well-settled that the WCJ may choose the most appropriate and convincing evidence among conflicting medical evidence. (Place v. WCAB (1970) 3 Cal. 3d 372, 378.) Therefore, the undersigned turns to the medical evidence offered in support of the Applicant's alleged cumulative trauma injury. The parties jointly offered the reporting of PQME Dr. Jerome Hall dated March 11, 2022 and his deposition from July 12, 2022 which was discussed in depth in the Opinion on Decision dated February 17, 2023. (Joint Exhibits Y and X.) Dr. Hall opined the Applicant "is simply dealing with the sequelae of his previous injury from July 25, 2012, and that currently he has not sustained a new injury work related to his right knee." (Joint Exhibit Y page 16.) A report may be considered substantial evidence even if the doctor does not explicitly use the term "reasonable medical probability." (See Bates v. WCAB (2012) 77 CCC 636 (writ denied); McKinney v. WCAB (2014) 79 CCC 1456 (writ denied).) The undersigned found the reporting of Dr. Hall is found to

Granado v. WCAB (1968) 33 CCC 647, 653; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687, 1691

A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely conclusions.

Applied to reject conclusory medical reports lacking causation explanation.

From the decision · page 5Applicant also offered a report from Brittania Cogin, PA-C at Mammoth Hospital dated September 10, 2021 (Applicant Exhibit 4). Applicant asserts the report from Mammoth Hospital dated September 10, 2021 alone constitutes substantial medical evidence of a cumulative trauma injury. However, while the September 10, 2021 report from Mammoth Hospital does conclude there is a "work injury" the report does not offer any explanation as to when this "injury" occurred and does not support a finding of a cumulative trauma as alleged by the Applicant. A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. WCAB (1968) 33 CCC 647, 653; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687, 1691.) The report captures the Applicant's recitation of his symptoms which support he is having pain in his right knee. However, the reporting from examiner Cogin is conclusory and does not discuss causation beyond stating there is a "work injury." The undersigned did not find the September 10, 2021 report from Mammoth Hospital to be substantial medical evidence or even persuasive evidence as it was conclusory and did not specifically state the Applicant sustained a cumulative trauma injury.

McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 [en banc]; San Bernardino Community Hospital v WCAB (McKernan) (1999) 64 CCC 986

A WCJ may develop the record if necessary after trial but is not required to rescue a party from failure to develop their own case.

Applied to deny further record development as substantial evidence was found.

From the decision · page 6In conclusion, while all evidence was considered in the present matter, the undersigned found the reporting from Dr. Hall to be substantial medical evidence and more persuasive than any of the other evidence submitted. A WCJ may develop the record pursuant to McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 [en banc] if after trial the WCJ deems it necessary after review of the medical evidence and witness testimony. While a WCJ may have a duty to develop the record where the entire record is inadequate to enable a decision, this duty does not permit a judge to rescue a party from their obligation of developing their own case and obtaining medical evidence (see San Bernardino Community Hospital v WCAB (McKernan) (1999) 64 CCC 986). Since the reporting from Dr. Hall was found to constitute substantial medical evidence and addressed the allegation of cumulative trauma injury there was not a need to develop the record.

Hollingsworth v. WCAB (1996) 61 CCC 715

Failure to raise an issue at MSC results in waiver of that issue.

Applied to find waiver of replacement PQME issue not raised at trial.

From the decision · page 6Applicant's Attorney also contends the undersigned erred by finding the Applicant was not entitled to a replacement panel where the Applicant was unable to obtain the PQME's deposition within six months of request. This issue was not raised in the Declaration of Readiness to Proceed, nor listed on the Pre-Trial Conference Statement, and no evidence was submitted in support of this contention at the time of trial. Although, this may have been one of Applicant Attorney's items discussed in preparation for the Trial, it was not part of the issues submitted for decision. It has been held that if there is a failure to raise an issue at the MSC, the issue is deemed waived (Hollingsworth v. WCAB (1996) 61 CCC 715). Here, Applicant asserts the alleged delay in obtaining the PQME's deposition entitles the Applicant to a replacement PQME, but this was only raised in the Petition for Reconsideration and since it was not as an issue raised at Trial any attention to the issue should be disregarded.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony regarding job duties was accepted and consistent with Dr. Hall's reporting.

From the decision · page 4IV. DISCUSSION Applicant contends the undersigned erred by finding the Applicant did not sustain a cumulative trauma injury arising out of and in the course of employment. Further, Applicant contends the undersigned ignored relevant facts and evidence in the record by failing to give due consideration to the entire record. Contrary to Applicant's assertion, all documentary evidence and testimony was reviewed and considered by the undersigned. The undersigned found the Applicant to be credible when he testified with respect to his job duties. Furthermore, Dr. Hall's reporting regarding the Applicant's job duties was consistent with the Applicant's testimony at trial. Contrary to Applicant's assertion that his job duties were not considered, the undersigned did take into consideration his duties. However, since the Applicant's credibility was not called into question and there was no evidence offered to suggest his job duties were contrary to his testimony the undersigned was not compelled to discuss his duties in detail in the Opinion on Decision dated February 17, 2023 as they were accepted as accurate. Contrary to Applicant's assertion, the undersigned did consider all of the medical reports admitted into evidence.

Medical recordsfavours Defendant prevailed

Medical reports from Mammoth Hospital and Dr. Doty were found conclusory or not supportive of a new injury.

From the decision · page 5Applicant also offered a report from Brittania Cogin, PA-C at Mammoth Hospital dated September 10, 2021 (Applicant Exhibit 4). Applicant asserts the report from Mammoth Hospital dated September 10, 2021 alone constitutes substantial medical evidence of a cumulative trauma injury. However, while the September 10, 2021 report from Mammoth Hospital does conclude there is a "work injury" the report does not offer any explanation as to when this "injury" occurred and does not support a finding of a cumulative trauma as alleged by the Applicant. A medical report is not substantial evidence unless it offers the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. WCAB (1968) 33 CCC 647, 653; E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687, 1691.) The report captures the Applicant's recitation of his symptoms which support he is having pain in his right knee. However, the reporting from examiner Cogin is conclusory and does not discuss causation beyond stating there is a "work injury." The undersigned did not find the September 10, 2021 report from Mammoth Hospital to be substantial medical evidence or even persuasive evidence as it was conclusory and did not specifically state the Applicant sustained a cumulative trauma injury.

ADJ15337248 · May 15, 2023

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

What proof carried it

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