Opinion
NOT TO BE PUBLISHED
WCAB Case No. STK 0193553
SCOTLAND , P. J.
A. Teichert & Son, Inc. (Teichert) seeks relief from the decision of the Workers’ Compensation Appeals Board (the Board) that Raul Barron’s death arose out of, and occurred in, the course of his employment with Teichert. (Lab. Code, § 3600; further section references are to the Labor Code.) Teichert claims the Board applied the wrong standard of review, and its decision is not supported by substantial evidence. We issued a writ of review and now shall annul the Board’s order.
FACTS
The applicant’s husband, Raul Barron, who died on August 16, 2004, of a ruptured cerebral aneurysm, was employed by Teichert as a cement mason. The applicant alleged that the rupture of the aneurysm arose out of employment because it was proximately caused by Barron’s argument with his supervisor, Darrell Gardner.
Barron’s brother-in-law and coworker, Daniel Cuevas, observed Barron and Gardner having an unpleasant discussion on the morning of Barron’s death. Barron approached Cuevas, who described Barron as being mad and upset, and stated: “I can’t believe this shit.” A few minutes later, Barron said: “Screw it, I’m out of here” and walked away towards his truck. The truck, which was a couple of hundred feet away, was screened from Cuevas’s view by piles of dirt.
The foreman, Dan Thomas, was a block away when he saw Barron walk to his truck. Gardner told Thomas of a dispute with Barron on the previous Friday about not cleaning his tools before leaving work. Apparently, the argument on August 16, 2004, was a continuation of the previous one. A few minutes later, Thomas saw Barron sitting in the truck. About five minutes later, Thomas went over to Barron because he wanted to keep him on the job site. When he got to the truck, he found Barron slumped over in the driver’s seat. Barron was transported to the hospital, where he was pronounced dead.
The applicant sought the opinion of Dr. Rolf Scherman regarding Barron’s death. Dr. Scherman’s first report states he understood that the applicant “need[ed] a report regarding AOE/COE issues,” but he had not received enough information to provide an opinion. After he received the requisite medical information, Dr. Scherman submitted his second report, which was the only medical opinion introduced concerning whether Barron’s death arose out of employment and occurred in the course of employment.
Dr. Scherman’s second report stated the following:
Barron experienced cardiac arrest and an acute cerebellar hemorrhage. Barron did not have any known history of headaches, high blood pressure, or previous intracranial events. He had an argument with his supervisor on the day of the incident, went to his truck, and the hemorrhage occurred. A CT scan showed the hemorrhage but did not disclose whether the rupture of a small artery or a ruptured aneurysm caused the hemorrhage. However, it was more probable that Barron ruptured an aneurysm, “which is a congenital lesion, which could rupture at any time.”
There is a great deal of controversy concerning whether a sudden rise in blood pressure can lead to the rupture of an aneurysm. It was well documented in people who had been involved in strenuous activities prior to the rupture, such as heavy lifting, coughing, or sex. Dr. Scherman had seen cases “where there was good documentation of a rise in blood pressure during an argument, with this being followed by a rupture of an aneurysm, leading to a hemorrhage, which was not necessarily fatal.”
In this case, Barron was angry, and anger can lead to a rise in blood pressure; but it was unknown whether Barron experienced a spike in his blood pressure. At the time of Barron’s examination in the hospital, his blood pressure was depressed so there was “no clear picture of what his blood pressure might have been running when [the hemorrhage] occurred.”
Dr. Scherman opined: “[I]t is medically possible [Barron] may have become angered at his supervisor and that this anger may have been translated into increased blood pressure, with the increased blood pressure then leading to the rupture of a presumed aneurysm, which has not been documented. However, there is no way one can say with reasonable medical probability that this chain of events actually occurred and was causative of his death. All we can say is that this is one possible scenario, which cannot be proven or disproved.” Dr. Scherman apologized for his inability to be more definitive.
The parties stipulated that Barron died of a ruptured aneurysm. The sole issue at trial was the sufficiency of Dr. Scherman’s opinion as to industrial causation, i.e., whether the opinion established that Barron’s death arose out of, and in the course of, employment.
The Workers’ Compensation Judge (WCJ) found that Dr. Scherman’s opinion was sufficient to establish a casual connection between the events at work and the rupture of Barron’s aneurysm. Relying on McAllister v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 408 (hereafter McAllister), the WCJ noted that a causal connection does not have to be proved in detail. Thus, it was “not necessary to exactly know Mr. Barron’s blood pressure at the time of the incident.” The WCJ concluded the applicant had met her burden of proving that events at work caused Barron to experience an emotional state, which caused a rupture of Barron’s aneurysm, and the medical literature and Dr. Scherman’s personal observations of ruptured aneurysms supported the conclusion of industrial causation.
Teichert petitioned for reconsideration, contending that the WCJ applied the wrong standard of proof, and that the WCJ’s decision was not supported by substantial evidence because the only medical evidence concluded that industrial causation was only possible, not probable.
The WCJ filed a report and recommendation, explaining:
The preponderance of the evidence demonstrated Barron’s death resulted from an industrial injury that was proximately caused by, and arose out of, his employment. This was so because anger can lead to a rise in blood pressure, and it was well documented that a sudden rise in blood pressure can rupture an aneurysm. Thus, the medical probability that anger can lead to the rupture of an aneurysm was established, as was the fact that Barron was angry because of an argument at work with the lead man. Because the applicant made a prima facie showing that Barron was angry, the burden shifted to Teichert to show otherwise. Teichert did not bring Gardner to testify about his argument with Barron and his impression of Barron’s emotional state; and Teichert was in the best position to secure this evidence.
The WCJ stated that Dr. Scherman’s inability to state with a medical probability what chain of events led to a rupture of the aneurysm was based on his lack of certainty regarding whether Barron indeed experienced a rise in his blood pressure. However, according to McAllister, supra, 69 Cal.2d 408, this did not have to be established to a medical certainty. The WCJ looked beyond Dr. Scherman’s “misuse of the phrase ‘reasonable medical probability’ and examined the basis for his opinion,” finding the doctor’s concern was that there was no documentation of a rise in blood pressure.
In sum, the WCJ concluded: “While it was a ‘close call’ and not readily apparent due to the misuse of the phrase ‘reasonable medical probability,’ Dr. Scherman’s report, when read in its totality, appeared more persuasive in showing a causal connection between the events of the employment and decedent’s injury than not.”
The WCAB adopted the WCJ’s decision and denied reconsideration.
STATUTORY FRAMEWORK
Section 3600, subdivision (a) states in pertinent part: “Liability for [workers’ compensation benefits], in lieu of any other liability whatsoever to any person except as otherwise specifically provided . . . shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur: [¶] . . . [¶] (2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment. [¶] (3) Where the injury is proximately caused by the employment, either with or without negligence.”
The requirement of section 3600 “‘is twofold. On the one hand, the injury must occur “in the course of the employment.” This concept “ordinarily refers to the time, place, and circumstances under which the injury occurs.” [Citation.]’ Thus “‘[a]n employee is in the “course of his employment” when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.’” [Citation.] . . . [¶] ‘On the other hand, the statute requires that an injury “arise out of” the employment . . . . It has long been settled that for an injury to “arise out of the employment” it must “occur by reason of a condition or incident of [the] employment. . . .” [Citation.] That is, the employment and the injury must be linked in some causal fashion.’ [Citation.]” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651 (hereafter LaTourette).) Employment must be one of the contributing causes without which the injury would not have occurred. (Id. at p. 651, fn. 1.)
An applicant for workers’ compensation benefits has the burden of establishing a “reasonable probability of industrial causation” (McAllister, supra, 69 Cal.2d at p. 413) “by a preponderance of the evidence.” (Lab. Code, § 3202.5.) However, our review of this issue is framed by section 3202, which provides that issues of compensation for injured workers “‘shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’” (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 (hereafter Department of Rehabilitation).)
Section 3202.5 states: “All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law. ‘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.”
“Thus, ‘“[a]lthough the employee bears the burden of proving that his injury was sustained in the course of his employment, the established legislative policy is that the Workmen’s Compensation Act must be 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. [Citation.] This rule is binding upon the board and this court.”’ [Citation.] Moreover, whether an employee’s injury arose out of his employment is not the only question subject to this rule: ‘All aspects of workers’ compensation law . . . are to be liberally construed in favor of the injured worker.’ [Citation.]” (Department of Rehabilitation, supra, 30 Cal.4th at pp. 1290-1291, orig. italics.) Nevertheless, these principles do not relieve the applicant of the burden of establishing the relevant facts by a preponderance of the evidence. (Fleetwood Enterprises, Inc. (2005) 134 Cal.App.4th 1316, 1323; § 3202.5.)
When an injured worker is awarded compensation for an industrial injury and the Board affirms the award, our review of that decision is limited. (Department of Rehabilitation, supra, 30 Cal.4th at p. 1290.) We defer to the Board’s factual findings if supported by substantial evidence. (§ 5952.) We are precluded from substituting our choice of the most convincing evidence or reweighing the evidence to decide disputed questions of fact. (§ 5953; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) While we will not disturb an award merely because it is susceptible of opposing inferences, we may not accept factual findings if they are illogical, unreasonable, improbable, or inequitable considering the entire record and overall statutory scheme. (Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., supra, 16 Cal.App.4th at p. 233.)
DISCUSSION
Teichert does not dispute that Barron’s death occurred in the course of employment; it contends the WCJ and the Board applied the wrong standard of review and, thus, did not require the applicant to prove by a preponderance of the evidence that Barron’s death “arose out of” his employment.
Teichert also contends that even if the WCJ applied the correct burden of proof, there is no substantial evidence that Barron’s death arose out of his employment.
Teichert’s first contention requires little discussion because the record discloses the WCJ applied the correct standard and found that the applicant met her burden of proof by a preponderance of the evidence. (§ 3202.5.) Teichert questions this because the WCJ stated the applicant made a prima facie showing that Barron was very upset and angry, so the burden shifted to Teichert to show otherwise. The WCJ indicated that Teichert should have produced Gardner, the supervisor who argued with Barron, to rebut the applicant’s evidence of Barron’s mental state. In Teichert’s view, this establishes the WCJ paid “lip service” to the burden of proof in section 3202.5, and the WCJ impermissibly used the liberal construction mandate of section 3202 to reduce applicant’s burden of proving industrial causation by a preponderance of the evidence.
The problem, however, is not that the WCJ applied the wrong burden of proof; rather, it is that there is no substantial evidence of industrial causation. The flaw in the WCJ’s analysis is that while the evidence supports a determination that Barron was angry, this is not the critical issue. Simply showing that an employee became angry does not demonstrate a compensable industrial injury. The decisive factor is whether applicant produced evidence showing it was reasonably probable that Barron’s anger, which arose from his workplace argument with his supervisor, caused his aneurysm to rupture.
“The general rule governing injury from nonoccupational disease . . . differs markedly from that governing physical injury from a condition of the employment that places the employee in a position of danger. Under the broad ‘positional risk’ theory applicable to physical injuries in the workplace, e.g., cuts from flying glass, injury from a fall, ‘[i]t is sufficient if the work brings the employee within the range of peril by requiring his or her presence there when it strikes, and the employee need only establish that the employment placed him or her within the range of danger by requiring him or her to be “in the precincts” of the employer’s premises “at the time the peril struck.”’ [Citation.] By contrast, in the area of nonoccupational disease, ‘[t]he fact that an employee contracts a disease while employed or becomes disabled from the natural progress of a nonindustrial disease during employment will not establish the causal connection.’ [Citation.]” (LaTourette, supra, 17 Cal.4th at pp. 653-654.)
“There are two principal exceptions to the general rule of noncompensability for nonoccupational disease, or treatment therefor. ‘First, if the employment subjects the employee to an increased risk compared to that of the general public, the injury is compensable. Second, if the immediate cause of the injury is an intervening human agency or instrumentality of the employment, the injury is compensable.’ [Citation.]” (LaTourette, supra, 17 Cal.4th at p. 654.)
It appears the applicant relied upon the second exception. Thus, she had to prove by a preponderance of the evidence that it was reasonably probable that Barron’s argument with his supervisor caused his blood pressure to suddenly increase enough to rupture his aneurysm. (§ 3202.5; LaTourette, supra, 17 Cal.4th at pp. 656-657.) Teichert contends there is no substantial evidence of a reasonable probability that this occurred, only a mere possibility which is not sufficient. We agree.
A “‘reasonable’ or ‘probable’ causal connection will suffice; [but] it is to be distinguished from the merely ‘possible.’ [Citation.]” (McAllister, supra, 69 Cal.2d at p. 416.)
Dr. Scherman observed that an aneurysm can rupture at any time, and noted that there is a great deal of controversy in the medical literature regarding whether an increase in blood pressure can cause an aneurysm to rupture. He stated it was only a “possible scenario” that Barron’s aneurysm ruptured as a result of the argument. He did not opine that it was reasonably probable the argument caused the aneurysm to burst; that it was probable the argument raised Barron’s blood pressure significantly enough to burst the aneurysm; or even that arguments typically cause a person’s blood pressure to increase significantly enough to burst an aneurysm. Dr. Scherman merely stated that anger can cause blood pressure to increase and, in some instances, has caused aneurysms to rupture. This was a possible scenario, but he did not state it was reasonably probable that this occurred to Barron, who had no history of hypertension. Indeed, Dr. Scherman stated he could not say with “reasonable medical probability” that Barron’s blood pressure rose due to the argument and this burst the aneurysm.
Dr. Scherman was a Qualified Medical Evaluator (QME), who understood that the material issue was whether Barron’s death arose out of his employment. He knew the critical issue was whether it was reasonably probable or likely that the argument caused Barron’s aneurysm to burst. Despite this knowledge, he did not render an opinion stating it was reasonably probable that this occurred. In other words, he did not indicate that the workplace argument was probably one of the contributing causes without which the injury would not have occurred. (LaTourette, supra, 17 Cal.4th at p. 651, fn. 1.)
Relying primarily on McAllister, supra, 69 Cal.2d 408 for the proposition that industrial causation need not be established with certainty, the WCJ determined that Dr. Scherman misunderstood the applicable legal standard for proving causation. Accordingly, the WCJ rejected Scherman’s conclusion he could not say with “reasonable medical probability” that Barron’s aneurysm burst as a result of increased blood pressure caused by the workplace argument. Although claiming to rely on the report “in its totality,” the WCJ selected portions of the report the WCJ believed demonstrated that Barron’s death was probably caused by the argument.
This selective reading of the physician’s report was not permissible. If Dr. Scherman truly misunderstood the applicable legal principles, then his opinion cannot be used as substantial evidence to support the Board’s determination. (Rosas v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1702; accord, State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1315.) “‘[W]hen the Board relies upon the opinion of a particular physician in making its determination, it may not isolate a fragmentary portion of his report or testimony and disregard other portions that contradict or nullify the portion relied on; it must give fair consideration to all of his findings. [Citations.]’ [Citation.]” (Rosas v. Workers’ Comp. Appeals Bd., supra, 16 Cal.App.4th at p. 1702; accord, State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd., supra, 146 Cal.App.4th at p. 1315.)
Furthermore, the WCJ’s reliance on McAllister, supra, 69 Cal.2d 408 is misplaced. In McAllister, the question was whether the applicant should receive compensation benefits for the lung cancer death of her husband, who was employed for 32 years as a firefighter. The applicant alleged that smoke inhalation during the course of employment had caused her husband’s death and submitted expert testimony in support of her claim. (Id. at pp. 411-412.) The medical expert stated “it was ‘probable’ that the smoke inhaled contained carcinogens, and that it was ‘reasonable’ that decedent’s prolonged occupational exposure could lead to lung cancer.” (Id. at p. 416.) McAllister held that “‘reasonable’ or ‘probable’ causal connection will suffice; it is to be distinguished from the merely ‘possible.’ [Citation.] . . . [I]ntellectual candor may at times require expert testimony in terms of mere probability. [Citations.] For that reason alone we cannot demand that experts be more certain, particularly when industrial causation itself need not be certain, but only ‘reasonably probable.’” (Id. at pp. 416-417.)
McAllister observed that the Board expressed concerned that the applicant did not demonstrate the exact amount of each type of smoke inhaled, and the precise danger to the decedent from such inhalation. But such a detailed account was not a prerequisite to recovery as the burden on applicants would be “unbearable.” (McAllister, supra, 69 Cal.2d at p. 417.) “The exact amount and kinds of pollutants inhaled by decedent could only be known if a chemist had gone with him to each fire over his 32 years as a fireman. The precise toxicity of each type of pollutant, alone or in combination with others, is still not known. [¶] In order to cover such unavoidable uncertainties, we require applicants to establish no more than that industrial causation is reasonably probable.” (Ibid.)
As applied to this case, it does not matter that Dr. Scherman was unable to opine with certainty that Barron’s blood pressure increased significantly thereby causing his aneurysm to burst. However, it does matter that he was unwilling to say that this probably occurred or it was reasonable to assume that this occurred, as opposed to only that it was possible that the argument caused the ruptured aneurysm. Dr. Scherman did not even state that anger usually raises a person’s blood pressure, only that it can do so. It is speculative to assume that simply because an argument can raise a person’s blood pressure, it probably did so to Barron and his blood pressure probably spiked enough to burst the aneurysm.
While all reasonable doubts as to whether an injury arose out of employment and any conflicts in the evidence are to be resolved in favor of the employee (§ 3202; Department of Rehabilitation, supra, 30 Cal.4th at pp. 1290-1291), “‘[a]n award of compensation may not be based upon surmise, conjecture or speculation.’ [Citation.]” (LaTourette, supra, 17 Cal.4th at p. 656.) Medical evidence that lacks convincing force does not establish proof of a work connection by a preponderance of the evidence. (Wehr v. Workers’ Comp. Appeals Bd. (1985) 165 Cal.App.3d 188, 194.) Section 3202 does not authorize creation of nonexistent evidence or creation of a conflict in the evidence that does not otherwise exist. (Id. at p. 195.) The Board must generally accept as true the intended meaning of uncontradicted and unimpeached evidence. (Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281.) The intended meaning of Dr. Scherman’s opinion is plain; he could not say that it was reasonably probable the argument at work caused Barron’s aneurysm to rupture. The Board could not speculate that he meant otherwise.
We disagree with the WCJ’s conclusion that Dr. Scherman applied the wrong legal standard and did not understand that industrial causation did not have to be established to a legal certainty. This conclusion is speculative given that Dr. Scherman was a QME, who was familiar enough with workers’ compensation issues to use the abbreviations “AOE/COE” for the terms of art “arising out of employment” and “condition of employment.” And such speculation does not justify the wholesale rejection of Scherman’s opinion that he could not say with reasonably medical probability that the argument caused Barron’s death.
At oral argument in this court, respondent incorrectly asserted that Dr. Scherman reached his medical conclusion simply because it was unknown whether Barron’s argument with his supervisor actually resulted in a spike in Barron’s blood pressure. In fact, Dr. Scherman’s expert opinion that “there is no way one can say with reasonable medical probability [the ruptured aneurysm was the result of Barron’s argument with his supervisor]” reflected the disagreement among the doctors as to whether a sudden rise in blood pressure can lead to the rupture of an aneurysm. Dr. Scherman opined Barron suffered from a congenital aneurysm that could have ruptured at any time. Even though it was possible the argument caused Barron’s blood pressure to rise, it cannot be said to a reasonable medical probability that this would have caused the aneurysm to rupture.
Under the circumstances, there is no substantial evidence that Barron’s death arose out of his employment, and the Board’s decision must be annulled.
DISPOSITION
The Board’s decision denying reconsideration and granting compensation is annulled.
We concur: BLEASE , J. ROBIE , J.