LICARI v. WORKERS COMPENSATION APPEALS BD

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Court of Appeal, Third District, California.

Kathleen LICARI, Petitioner, v. WORKERS' COMPENSATION APPEALS BD., et al., Respondent.

No. C023468.

Decided: December 18, 1996

Petitioner Kathleen Licari seeks annulment of an order by the Workers' Compensation Appeals Board (the Board) denying reconsideration of a finding that Licari did not sustain injury to her neck arising out of, and occurring in the course of, her employment. She contends the order is not supported by substantial evidence. We agree. Accordingly, we shall annul the Board's order and remand the cause to the Board for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Licari sought workers' compensation benefits for injuries to her neck allegedly sustained on January 3, 1995, while she was employed as a dental assistant for Mark Zila, D.D.S. At a hearing before a workers' compensation judge (the WCJ), Licari testified as follows:

She was injured while helping Dr. Zila perform a dental procedure on his father-in-law. The procedure lasted three and one-half hours, during which time Licari was bent over, retracting the patient's tongue. She developed numbness in her right hand, tingling in her left elbow, and soreness in her neck. After the procedure, Licari continued to work for three more hours, during which time she did not mention the soreness in her neck and numbness in her arm because she thought these problems would go away.

When Licari went home that night, she took some Tylenol and went to sleep. She was awakened the next morning by the telephone ringing. When she reached for the telephone, she could not use her right arm.

On January 5, 1995, Licari's next scheduled work day, it was apparent that she was injured. Licari told Dr. Zila she hurt herself by jumping up to answer the phone at home. She does not know why she did not tell him about the work-related incident. Licari was unable to continue working due to her injury and was terminated by Dr. Zila on January 17, 1995.

According to Dr. Zila, he did not learn of Licari's claim that she was injured at work until she filed a workers' compensation claim form in February 1995. He testified Licari told him she had injured her neck while cradling a phone between her chin and shoulder, talking to her mother. He verified the dental procedure lasted three and one-half hours, but believed that retraction for the procedure was minimal and did not think Licari was bent over, even though she was much taller than him.

The medical records submitted by the parties disclosed the following: On January 6, 1995, Licari sought medical treatment at the Alpine Fracture and Medical Clinic. According to the chart notes, Licari reported that she pulled her neck jumping out of bed and that she had a similar episode two and one-half years before. She was diagnosed with muscle spasms and was prescribed oral medications.

On January 13, 1995, Licari saw Dr. Thomas Smith and told him she incurred her neck injury when she “slept wrong a week ago.” On the same date, however, Licari told the physical therapist who was treating her that her injuries ensued following a stressful day at work ten days previously.

An MRI performed on January 23, 1995, revealed minimal posterior annular bulging of the C4-C5 and C5-C6 intervertebral discs. Dr. Don DeFeo, to whom Licari was referred by Dr. Smith, opined that she needed a cervical discectomy at the C3-4, C4-5, and C7 levels. Licari told Dr. DeFeo that her neck tightened up after she assisted Dr. Zila during a long dental procedure.

On March 8, 1995, Licari sought a second opinion from Dr. Vance Gardner. Licari told Dr. Gardner she was hurt during a dental procedure, in which she had to flex at the cervical and lumbar spine, slightly tilt her head to the right, and use her right arm in retracting. She stated she had to stop and shake her arm at least twice because it was becoming numb. Licari denied any previous cervical injury or pain. Dr. Gardner opined that Licari may have placed her neck in a position which decreased her radicular blood flow by narrowing the foraminal dimensions. However, he believed cervical fusion was premature and recommended further treatment with nonoperative methods.

On March 24, 1995, Licari received a cervical epidural steroid injection from Dr. Don Mills. Licari told him her neck problems began during the dental procedure, in which she had to stretch out and lean over the patient. The injection provided Licari with two weeks of relief, and then her neck and arm symptoms returned. On May 5, 1995, Licari received another epidural steroid injection, but it did not provide as much relief as the first one.

In late June of 1995, a second MRI was performed which disclosed a herniated disc at the C4-5 level and a larger herniated disc at the C5-6 level, which indented the ventral margin of the thecal sac and the spinal cord.

Following the MRI results, Dr. Gardner recommended an anterior cervical discectomy and fusion at the C4-5 and C5-6 levels, using iliac crest bone grafts.

On July 17, 1995, Licari was examined by Dr. Robert Bielen at the request of Dr. Zila's workers' compensation carrier. Licari related she was injured while assisting Dr. Zila in a three and one-half hour dental procedure, during which her hand kept “going to sleep.” That evening she experienced tightness and soreness in her neck, and the following morning she was in severe pain. In addition to examining Licari, Dr. Bielen reviewed her medical records, including those in which Licari related she had “slept wrong” and hurt her neck jumping out of bed. Dr. Bielen concluded that, “in the absence of any records to the contrary, the patient's problems apparently began when she sustained injury to her neck while assisting her employer at a protracted dental procedure.” He suggested a six-week program of physical therapy, after which Licari would be a candidate for surgery should her condition fail to improve.

On August 29, 1995, Licari was examined by Dr. David Wood, an orthopedic surgeon. Dr. Wood diagnosed Licari as suffering from a musculoligamentous strain/sprain of the cervical spine superimposed on disc bulges at the C4-5 and C5-6 levels. He also opined that Licari might be suffering from ulner neuritis of the right elbow and a probable “double crush syndrome.” After reviewing Licari's medical records, including her alternate explanations regarding the origin of her injuries, Dr. Wood offered the following opinion as to the cause of her injuries: “By history, it appears this patient's ongoing disability and need for treatment is related to work activities of January 3, 1995 [absent] some significant evidence to the contrary.”

The WCJ found Licari failed to meet her burden of establishing that she suffered a work-related injury. His decision states: “There appears to be no question that applicant could have injured her neck as alleged. There also appears to be no question that applicant could have injured her neck by sleeping in the wrong position; by cradling a phone between her head and shoulder; by reaching out to answer a phone; and by jumping out of bed. All of these theories have been advanced in the medical records provided by the parties in this case.” The WCJ noted Licari did not immediately tell her employer that her injuries were due to the dental procedure, nor did she mention her theory of employment causation to her initial medical providers. The WCJ stated patients normally and naturally tell their doctors the truth. Therefore, he put great weight on the earlier histories given by Licari and found to be unpersuasive her later assertions that her injuries were work-related.

Licari filed a petition for reconsideration alleging there is no substantial evidence to support the WCJ's decision. According to Licari, whether her injuries were caused by the dental procedure, and therefore were work-related, is an issue that requires expert medical opinion. The only medical opinions as to causation suggest that Licari's injuries were caused by the dental procedure.

In his report and recommendation to the Board, the WCJ explained it was unnecessary to obtain expert medical testimony to contradict Dr. Wood's opinion that Licari's injuries were caused by assisting in the dental procedure because Dr. Wood's opinion is based upon the information provided by Licari about “the mechanics of her injury.” Licari's testimony about how her injuries occurred was unreliable because she gave conflicting histories to the different doctors. The WCJ did not believe the three-hour procedure “actually precipitated the neck problems” and believed Licari's earlier statement about hurting her neck while jumping out of bed, as she reported to the Alpine Fracture and Medical Clinic. Accordingly, the WCJ concluded, “any medical opinion based on the incorrect history is not substantial evidence [that Licari's injury was work-related].”

The WCJ also construed the chart notes from the Alpine Fracture and Medical Clinic as a medical opinion that Licari's injuries were not industrially-related. He stated: “Applicant states there is no medical opinion that finds the applicant's condition was related to anything but the dental session. That is not true. The doctors at Alpine had no industrial history and yet they diagnosed acute cervical spasms and treated accordingly. Apparently the history given to Alpine was consistent with the diagnosis.”

The Board adopted the reasoning set forth in the WCJ's report and denied the petition for reconsideration.

DISCUSSION

Licari contends the Board's order denying reconsideration is not supported by the evidence because the only medical opinions proffered concerning the cause of her neck injuries state the injuries are work-related. The Board responds that the medical opinions upon which Licari relies are not substantial evidence that her injuries are work-related because the opinions are based upon an erroneous patient history.

In a workers' compensation proceeding, the employee has the burden of proving industrial causation by a “reasonable probability.” (Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700.) “That burden manifestly does not require the applicant to prove causation by scientific certainty.” (Id., at p. 1701.) The Workers' Compensation Act is liberally construed in the employee's favor, and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317.)

In most cases, the cause of back ailments is an issue requiring expert medical evidence. (Peter Kiewit Sons v. Industrial Acc. Com. (1965) 234 Cal.App.2d 831, 838-840.) “‘[T]he relevant and considered opinion of one physician, though inconsistent with other medical opinions, normally constitutes substantial evidence. Medical reports and opinions are not, however, substantial evidence if they are based on surmise, speculation, or conjecture, or if they are known to be erroneous or based on inadequate medical histories and examinations.”’ (Rosas v. Workers' Comp. Appeals Bd., supra, 16 Cal.App.4th at p. 1702; citations omitted.)

An award, order or decision of the Board must be supported by substantial evidence in light of the entire record. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-281; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 255.) This standard is not met by simply isolating evidence which supports the Board and ignoring other relevant facts in the record which rebut or explain the evidence. (Bracken v. Workers' Comp. Appeals Bd., supra, at p. 255.) Thus, “in evaluating the evidentiary value of medical evidence, a physician's report and testimony must be considered as a whole rather than in segregated parts; and when so considered, the entire report and testimony must demonstrate the physician's opinion is based upon reasonable medical probability.” (Ibid.)

Here, it is undisputed Licari engaged in the dental procedure she now alleges caused her neck injury. It also is undisputed she has cervical injuries sufficiently significant to require surgical intervention. The only question is whether the dental procedure caused her injuries or was a contributing causal factor.

The WCJ found Licari had not met her burden of establishing she suffered a work-related injury. He stated: “There appears to be no question that applicant could have injured her neck as alleged. There also appears to be no question that applicant could have injured her neck by sleeping in the wrong position; by cradling a phone between her head and shoulder; by reaching out to answer a phone; and by jumping out of bed. All of these theories have been advanced in the medical records provided by the parties in this case. Unfortunately, these theories are all based on different histories given by the applicant. Which is the court to believe?” Believing patients normally tell their doctors the truth, the WCJ put great weight on the earlier histories of non-industrial causation given by Licari to her initial treating physicians.

The problem with the WCJ's assessment is that, despite his assertion to the contrary, there is a question regarding whether jumping out of bed, cradling a phone, sleeping in the wrong position, or reaching for a phone could have caused cervical disc bulges, ulner neuritis, “double crush syndrome”-- injuries sufficient to require surgical intervention. This is not a matter subject to lay opinion, and there is no expert medical testimony to this effect. The earlier medical records, upon which the WCJ relied, do not offer an opinion as to the cause of Licari's injuries; they merely recite the oral history given by her. The doctors were not asked to proffer an opinion concerning medical causation. Furthermore, these doctors were not even aware of the extent of Licari's injuries as the diagnostic tests which disclosed them had not yet been performed. Absent knowledge of the extent of her injuries, any opinion regarding causation is of questionable value.

The sole expert opinions offered regarding causation are those of Dr. Wood and Dr. Bielen. Both doctors reviewed Licari's medical records, expressly noting that Licari earlier had attributed her injuries to jumping out of bed or reaching for a phone. Despite these earlier histories, Dr. Wood opined that Licari's injuries were work-related, absent significant evidence to the contrary, and Dr. Bielen stated that, in the absence of any records to the contrary, Licari's problems apparently began when she injured her neck during the dental procedure. As such, it appears these doctors discounted the other possible causes enumerated by the WCJ. The only substantial medical evidence regarding causation is that Licari's injuries are work-related.

Although the WCJ found unconvincing Licari's testimony that the dental procedure precipitated her injuries, and chose instead to rely on Licari's earlier explanation to her doctors regarding how she hurt her neck, this does not necessarily undermine the opinions of Dr. Wood and Dr. Bielen. Viewed in the light most favorable to the Board, the WCJ's assessment regarding Licari's credibility merely indicates the WCJ believed that, because she did not initially attribute her pain to the dental procedure and did not report it to her first health care providers or employer, Licari did not feel pain during or immediately after the dental procedure. However, there is no evidence this finding would affect the opinions of Dr. Wood and Dr. Bielen that the dental procedure caused Licari's injuries.1 They were not asked whether a patient in Licari's condition would necessarily feel pain immediately upon performing the act which allegedly precipitated the injury and thus be able to ascertain in a timely fashion that the procedure was the root of the problem. There was no medical evidence that, if Licari did not feel such pain and draw such a timely conclusion, the dental procedure likely did not cause or contribute to her injuries.

Once the Board rejected the consulting physicians' opinions because it believed they were based on Licari's discredited version of when she first felt the pain and attributed it to the dental procedure, the Board was left with the undeveloped matter of whether the physicians' opinions would have been different assuming, as the Board found, that Licari did not feel pain during or immediately after the dental procedure.

Given this void in the medical evidence, the Board should have required further development of the record. Accordingly, we remand the cause to the Board for that purpose. (See Garza v. Workman's Comp. App. Bd., supra, 3 Cal.3d at p. 318.)

DISPOSITION

The Board's order denying reconsideration is annulled, and the cause is remanded to the Board for further proceedings consistent with this opinion.

FOOTNOTES

1.  It is questionable whether an applicant's delay in reporting an injury to an employer is sufficient to support a determination that the applicant's injuries are not work-related. (Garza v. Workmen's Comp. App. Bd, supra, 3 Cal.3d at p. 318, fn. 3.)

SCOTLAND, Associate Justice.

SPARKS, Acting P.J., and DAVIS, J., concur.