Workers' Compensation

Substantial Medical Evidence

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by Cortney Lemos-Crawford & Kelsey Paddock

Luis v. WCAB, (2019) 84 Cal. Comp Cases 107

Ms. Luis (“Applicant”) sustained an injury on 12/9/2013 while employed by Labor Finders as a bakery assistant. She alleged injury to her lumbar spine, cervical spine, right knee, right upper extremity, bilateral hips, digestive and excretory systems, skin and right hand. Defendant accepted the lumbar spine, cervical spine, right knee, and right upper extremity only. Applicant had sustained at least three prior industrial injuries to overlapping body parts, all of which had resolved by Compromise & Release.

The parties agreed to use Dr. Jeffrey Bernicker as an Agreed Medical Evaluator (“AME”). He evaluated Applicant twice and reviewed 1,800 pages of medical records and prior settlement documents. Ultimately, he concluded that any impairment was the result of the prior industrial injuries. Dr. Bernicker stated, “Rarely throughout my career as a Medical-Legal examiner serving the greater San Diego Workers’ Compensation community (during which time I have issued well over 3000 AME reports) have I encountered a case where there [is] so much evidence supporting extensive apportionment to prior industrial injuries.”

Applicant subsequently alleged an additional injury against Labor Finders from 2015, which was during the period that she was working modified duty due to the 2013 claim. Dr. Bernicker evaluated Applicant for that date of injury as well.  He found that the injury, “either never occurred in the first place or, even if it hypothetically was considered to have occurred, simply represented a mild transient flare-up of the symptoms that have been well documented prior to that date and for which the patient was already under active treatment.”

The matter proceeded to a four-day trial before Judge Ellison at the San Diego Workers’ Compensation Appeals Board (“WCAB”) with Hanna Brophy’s Ms. Lemos-Crawford appearing on behalf of the Defendant. Having relied on the opinions of AME Dr. Bernicker, Judge Ellison ruled in favor of Defendant.

Applicant filed a Petition for Reconsideration arguing that the opinions of Dr. Bernicker were not substantial medical evidence because they were predicated on surmise, speculation conjecture, or guess. Applicant further argued that Dr. Bernicker was biased against her based on her prior work injuries. The WCAB denied Applicant’s Petition for Reconsideration noting that Applicant “mischaracterize[d] the record.”

Applicant then filed a Writ for Review based on the same premise. The District Court of Appeal (“the Court”) denied Applicant’s Petition, noting that it was “[b]ased on the same errors of which Luis complained to the Board.” It emphasized that the Court may only consider whether the “the evidence, when viewed in light of the entire record, supports the Award of the Board.” It may not reconsider the evidence itself. Further, the Court cited Pearson Ford v. WCAB (2017), 16 Cal. App. 5th 889; 82 Cal Comp Cases 1105 to reiterate that an AME’s opinion should be followed “unless there is good reason to find the opinion unpersuasive, given that the parties typically select an agreed medical evaluator for her expertise and neutrality.”

This case provides further precedent that the opinions of an AME should be followed absent good reason to find the opinion unpersuasive. Defendants should be encouraged to stand their ground when the facts and the law are on their side.

© Copyright 2019 by Cortney Lemos-Crawford & Kelsey Paddock
All rights reserved. Reprinted with permission.

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