Elmore v. WCAB (Elliott Laboratories)

Filed 1/30/07 Elmore v. WCAB (Elliott Laboratories) CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Merle C. Rabine, James C. Cuneo, and Frank M. Brass, Commissioners. Robert McEvilly, Workers Compensation Administrative Law Judge.

Steven Elmore, in propia persona, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Haworth, Bradshaw, Stallknecht & Barber and Clark Pennington Barber, for Respondents Elliott Laboratories and Republic Indemnity Company.

-ooOoo-

Steven Elmore petitions, in propia persona, for a writ of review asking this court whether the Workers Compensation Appeals Board (WCAB) properly denied his petition for reconsideration from a decision finding he did not sustain an industrial injury. (Lab. Code,^[1] 5950, Cal. Rules of Court, rule 57.) Lacking substantial evidence supporting a work-related injury, we must deny Elmores petition.

BACKGROUND

Elmore worked as an associate product safety engineer testing electronic devices for Elliott Laboratories in Sunnyvale. According to Elmore, he transported an ATM machine on a cart that forced him to fall into the edge of a door on June 12, 2003. He explains he could not remember the fall until about three months later and that he originally only remembered pain shooting down his arm while reaching for a keyboard.

According to Elliott Laboratories human resources manager Jennifer Rosenblatt, Elmore thereafter only worked a few hours the next day, June 13, 2003, and on his last day, June 17, 2003. Rosenblatt recalled Elmore reporting the pain and asked him if it was work-related; he told her the pain was from an old Vietnam injury. She then assisted Elmore in filing for state disability benefits. Barry Klinger, Vice President of Operations with Elliot Laboratories, notified Elmore on March 17, 2004, that his employment would be terminated on March 31, 2004.

Edmore filed a claim for workers compensation benefits on March 28, 2004, describing his June 12, 2003, injury and affected parts of the body as: Reached out to type report got sharp pain in upper back going to right side of arm to fingertips. After an April 24, 2006, hearing, a workers compensation administrative law judge (WCJ) found Elmore did not sustain an industrial injury. The WCJ specifically noted Elmores testimony lacked credibility and was not at all persuasive, and that Rosenblatts testimony was more convincing. The WCJ also found the injury otherwise barred under section 3600, subdivision (a)(10) governing disability claims filed after a notice of termination.

Elmore dismissed his counsel and filed a petition for reconsideration with the WCAB contending he discovered new evidence material to him which he could not with reasonable diligence have discovered at the hearing. He explained he was unable to remember the facts that surrounded the accident until he underwent testing at UCSF Medical Center in October 2003. He also pointed to an exception allowing a post-termination disability claim to go forward where medical evidence of an injury existed prior to the notice of termination pursuant to section 3600, subdivision (a)(10)(B).

The WCAB issued an opinion and order denying reconsideration on October 5, 2006, agreeing with Elmore that his claim was not barred because medical reporting from two physicians recorded Elmores injury before his notice of termination. However, the WCAB also expressly agreed with the WCJs credibility determinations, adding that we do not find credible [Elmores] claim on reconsideration that, as a result of his injury, he is unable to remember the facts surrounding the incident. The WCAB further noted the petition could be dismissed because Elmore failed to verify and serve his petition for reconsideration. ( 5902, 5905; Cal. Code Regs., tit. 8,  10850.)

DISCUSSION

Elmore asks whether the WCAB properly denied his petition for reconsideration and reargues the facts surrounding his disability claim. We therefore presume he believes the WCABs finding he did not sustain an industrial injury lacks substantial evidence. In reviewing whether a WCAB order, decision, or award is supported by substantial evidence, we may not reweigh the evidence or decide disputed questions of fact. ( 5953; Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) So long as the WCABs findings are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award. (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.)

Although the WCAB and appellate courts must construe workers compensation laws liberally in extending disability benefits, the employee nevertheless carries the burden of proof by a preponderance of evidence that an injury or disease arose out of the course of employment. ( 3202, 3202.5, 3208; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 753.) Preponderance of the evidence means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence. ( 3202.5.)

In petitioning this court, Elmore recites his recollection of the events surrounding his injury and treatment. Relevant to the issue whether his injury was work-related, Elmore explains his primary care physician referred him to neurologist John Engstrom, M.D., at UCSF Medical Center who referred him to UCSF neurosurgeon Nicholas M. Barbaro, M.D. He continues:

I had talked to both Dr. Engstrom and Dr. Barbaro about the fall at work. I asked if they thought what was going on with my neck could be related to my fall at work. I was told that the fall could have aggravated my injury and we would talk about it after I recovered from my surgery. I had the surgery on 07/02/2004 and as of today I am still in a lot of pain. I talked to Dr. Barbaro after the surgery as a follow up to see how I was doing. My wife and I asked Dr. Barbaro at that time about the fall at work and we were told to wait until I was stable and he would see me in November. My insurance ran out and I couldnt afford $170.00 for the doctor visit. I have proof in my medical records that show where I had talked about the fall at work before March 17, 2004. My medical records show that lifting a bag of oats could not have caused the damage to my spine on June 12, 2003.

Elmore correctly describes, from the medical evidence accompanying his petition for writ of review, that he asked Dr. Barbaro whether his injury was work-related; Dr. Barbaro, however, never gave his medical opinion. Dr. Barbaros medical reporting of June 9, 2004, states:

[Elmore] brought up the possibility that this was a work-related injury. Apparently, prior to his developing neck and arm problems, he had a fall while at work. I explained to him that certainly a fall could exacerbate the condition of foraminal stenosis and told him that he could pursue this if he so desired.

Elmore does not offer this court any medical opinion that his injury is work-related. Instead, he only presents evidence that he posed the possibility of an industrial injury to his treating surgeon. Moreover, Dr. Barbaros explanation that a fall could exacerbate his condition does not support the contention that his injury arose out of and in the course of his employment.

The WCAB concluded Elmore did not sustain an industrial injury because it found his testimony and arguments incredible, and his former human resource manager, Rosenblatt, more credible. We are, of course, bound by the WCABs credibility determinations. (Pettigrew v. Workers Comp. Appeals Bd. (2006) 143 Cal.App.4th 397, 404 [the WCJ and WCAB are the sole judges of credibility].)

We also note that, while Elmores petition for writ of review was properly served and timely filed, it was not verified, in violation of Code of Civil Procedure, section 1069. We have not considered the exhibits accompanying Elmores petition dated after the WCAB issued its October 5, 2005, opinion and decision. (See  5502, subd. (e)(3), Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1163-1166.)

DISPOSITION

The petition for writ of review, filed November 15, 2006, is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.

^[1] Further statutory references are to the Labor Code.