ADJ8309831 — California WCAB decision

What the panel ordered

Findings, Award and Order of July 24, 2020 rescinded; matter returned to WCJ for further proceedings and new decision

Petition for Reconsideration granted to further study factual and legal issues; matter returned to WCJ for further proceedings and new decision

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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.

AOE/COERemandedright knee · left knee · bilateral knees

The WCJ's findings on injury AOE/COE were not supported by substantial evidence due to inconsistent and speculative medical opinions; the WCAB rescinded the prior decision and remanded for further proceedings with a new medical-legal report.

From the decision · page 8The medical reports in the trial record are contradictory and confusing. As explained above, the doctors' opinions are not based on adequate information, and they appear to be the result of the physicians' speculation, conjecture, or guess. Again, based on our review of the trial record, it is clear that the record does not contain substantial evidence upon which the issue of injury AOE/COE can be made.4

The facts that decided it

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

The rules the panel named

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

Labor Code section 5952(d)

Award, order, or decision must be supported by substantial evidence in light of the entire record

Applied to review medical opinions and evidence for substantial evidence support

From the decision · page 8It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess, and to be substantial evidence the medical opinion must set forth the reasoning behind the physician's opinion, not merely his or her conclusions; a mere legal conclusion does not furnish a basis for a finding. (Place v. Workmen's Comp. Appeals Bd.(1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647].)

Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615

An aggravation of a pre-existing condition is an industrial injury; exacerbation is temporary and not industrial injury

Applied to define aggravation versus exacerbation in injury analysis

From the decision · page 7The aggravation of a pre-existing condition is an increase in the severity of the pre-existing condition where the underlying pathology is permanently moved to a higher level. An aggravation of a pre-existing condition is an industrial injury. (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].) Exacerbation of a pre-existing condition is a temporary increase in the symptoms that returns to its prior level within a reasonable period of time, and is not an industrial injury.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's trial testimony found credible by WCJ, inconsistent with prior deposition testimony

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint

Medical recordsfavours Defendant prevailed

Medical opinions inconsistent, speculative, and not based on adequate information

From the decision · page 7Here, there is no dispute that applicant had prior injuries to her knees; the actual issue is whether her work for the Zoological Society of San Diego and/or for the Salvation Army, caused an aggravation of her pre-existing condition. Although applicant may have had an aggravation of her earlier symptoms, the opinions of the reporting physicians, as noted above, are inconsistent, they are not based on adequate information, and it appears that they may be the result of the physicians' speculation, conjecture, or guess. (See for example: Joint Exh. 14, p. 3, Def. Exh. 8, p. 19; Joint Exh. 2, p. 5; Joint Exh. 17, pp. 25 § 28.) Also, our review of the record indicates that applicant was deposed several times, that her trial testimony was inconsistent with her deposition testimony, and the WCJ found applicant's trial testimony to be credible. (F&A, p. 12, Joint

ADJ8309831 · November 23, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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