WCAB Reverses AOE/COE Using Substantial Medical Evidence Rules

Sacramento, CA - Salvador Mendoza claimed a specific injury to the back, lower extremities, nervous system and psyche while employed as a stocker by Esparza Enterprises, Inc., on July 25, 2005. After a 2007 trial the WCJ issued a decision finding injury AOE/COE to the low back, ten percent permanent disability, and the need for future medical treatment.  On May 28, 2010, Mendoza filed a Petition to Reopen this case against Esparza Enterprises claiming new and further disability.

Then on October 31, 2011 Mendoza filed an application for continuous trauma to his lumbar spine and psyche while employed as a baker’s helper by Smith’s Bakeries from March 1, 2006 to November 30, 2008.

Smith’s Bakeries denied AOE/COE, and further asserted the claim was barred by the one year filing limitation of section 5405, and that applicant filed the claim after notice of termination of layoff in violation of section 3600(a)(10). Smith’s Bakeries claimed it terminated applicant’s employment after applicant engaged in a verbal altercation with his supervisor.

On June 5, 2014, applicant settled his claim against Esparza Enterprises, including the Petition to Reopen, by way of Compromise and Release. Esparza reserved its rights to seek contribution or reimbursement from Smith’s Bakeries. And on February 2, 2016 Mendoza resolved his claim against Smith’s Bakeries by way of C&R and in paragraph 9 of the agreement, defendant maintained its denial of injury AOE/COE, and further asserted that the statute of limitations barred compensation.

The Smith's Bakeries case proceeded to trial to resolve lien claims and the WCJ found injury AOE/COE, and that section 5405 did not bar the claim because defendant did not deny the claim until December 29, 2011, and also determined that the claim was not barred by section 3600(a)(10), because the date of injury pursuant to section 5412 occurred after the date of notice of termination or layoff.

Reconsideration was granted and the finding of injury AOE/COE was reversed in the panel decision of Mendoza v Smith's Bakeries - ADJ8051802; ADJ1757644 - (April 2022).

The WCJ’s finding of AOE/COE was based the reporting of AME Dr. Sohn and the reports of QME Dr. Matloob. The WCAB concluded that neither of their reports met the substantial medical evidence standards.

The WCAB panel noted that "in order for a report to be substantial medical evidence, the opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions," citing the California Supreme Court decisions in  Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases 93]; and Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647], and the en banc WCAB panel decision of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [2005 Cal. Wrk. Comp. LEXIS 71].

Dr. Sohn provided no substantive description of applicant’s job duties while working for Smith’s Bakeries, and no explanation for why those job duties would have resulted in injury. Dr. Sohn does not describe what specific evidence he relied upon in revising his previously stated opinions that injury arose solely from employment with Esparza. The report offers percentages of causation as between Esparza and Smith’s Bakeries, but does not detail how the AME arrived at those percentages. The entirety of the AME’s apportionment analysis is contained in a two sentence paragraph, which does not adequately set forth reasoning in support of the AME’s conclusions.

In the absence of a clear understanding of applicant’s job duties at Smith’s Bakeries, the conclusion that any new disability would be attributable to applicant’s employment at Smith’s is not based on an adequate medical history.

The reporting of psychology QME Dr. Matloob was similarly unsubstantiated. The sole report from the QME reflects no record review. Thus, the conclusions reached in the QME reporting regarding causation, nature, and extent of the injury are predicated on applicant’s self-reporting at the examination. The lack of a record review impairs the QME’s ability to assess the relationship between the injuries claimed at Esparza and at Smith’s Bakeries. The significant discrepancies regarding the reported events of employment giving rise to the alleged psychiatric injury illustrate the necessity of a complete record review.

Source: WorkCompAcademy.com

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