ADJ10992726 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings, Award & Order rescinded; matter returned to WCJ for further proceedings.

Applicant sought reconsideration of the Findings, Award & Order issued by the WCJ on February 8, 2021, which was rescinded and the matter returned to the WCJ for further proceedings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COERemandedleft knee · bilateral shoulders

The WCJ found injury to left knee only, but reconsideration found injury to left knee and bilateral shoulders; the matter was remanded for further proceedings to clarify injury and other issues.

From the decision · page 1Applicant seeks reconsideration of the Findings, Award & Order (F&A) issued by the workers' compensation administrative law judge (WCJ) on February 8, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her left knee only, that there was no period of temporary total disability, and that the injury caused 18% permanent partial disability.

Permanent disability rating

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The medical evidence did not adequately address apportionment or permanent disability.

Favours neutral

This lack of substantial evidence required remand for further medical evaluation and findings.

From the decision · page 6As noted above, in the Report the WCJ recommended that the F&A be amended to include a finding of injury to applicant's shoulders and to include the 4% right shoulder impairment for a total of 24% permanent partial disability. The WCJ also stated that since none the doctors' reports in the trial record adequately discuss or explain apportionment, "[T]he Appeals Board may want to consider developing the record on the issue of apportionment and/or TTD." (Report, p. 4.)

Applicant sustained injury to left knee and bilateral shoulders, not just left knee as initially found.

Favours Applicant prevailed

This expanded injury finding required amendment of the Findings and remand for further proceedings.

From the decision · page 1The parts of body injured for this date of injury were the left knee and bilateral shoulders but not the right knee, bilateral wrists, cervical or lumbar spine. (Finding of Fact 2)

Dr. Johnson's medical report was inconsistent with applicant's testimony and not substantial evidence for temporary disability.

Favours Defendant prevailed

This undermined the prior finding of no temporary disability and required further record development.

From the decision · page 5v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298, 313 [79 Cal.Comp.Cases 488]; Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289.) Here, our review of the trial record indicates that the only medical report that addresses the issue of applicant's disability status during the period from June 3, 2017, through August 22, 2018, is the January 18, 2018 report from Dr. Johnson, wherein he stated that after review of additional records and diagnostics, "... a more well informed recommendation with regard to her status and need for additional treatment will be possible." (Def. Exh. C, p. 11.) Dr. Johnson then stated that applicant had continued working until the date, "... of her dismissal. She has subsequently continued working as a housekeeper...." and that she would have continued working for defendant had her employment not been terminated. (Def. Exh.

The record lacked substantial evidence on whether applicant's employment was terminated for good cause.

Favours neutral

This issue affects entitlement to temporary disability benefits and required remand for further evidence.

From the decision · page 5Further, "An employee is considered temporarily partially disabled if he [or she] is able to earn some income during his [or her] healing period but not his full wages. The disability payment in such event is [two-thirds] of the employee's weekly wage loss." (Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) An injured employee whose employment is terminated for good cause is not entitled to temporary partial disability benefits and the defendant has the burden of proving that the termination was for cause. (Butterball Turkey Co. v. Workers' Comp. Appeals Bd. (Esquivel) (1999 W/D) 65 Cal.Comp.Cases 61.) An employer remains liable for temporary disability benefits after terminating an employee if it fails to establish good cause by showing employee misconduct. (Manpower Temporary Services v. Workers' Comp. Appeals Bd. (Rodriguez) (2006 W/D) 71 Cal.Comp.Cases 1614.) In this matter, if it is ultimately determined that applicant was temporarily partially disabled as a result of her injury, it will be defendant's burden of proof to show that applicant's employment was terminated for good cause. The only evidence currently in the trial record on that issue is applicant's testimony that as a result

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMEPartially credited · chiropractic

Found injury to knees and right shoulder with apportionment; no injury to wrists, shoulders (left), cervical or lumbar spine; not temporarily disabled at time of exam; recommended further diagnostics.

The WCJ and Board found Dr. Johnson's reports not substantial evidence for temporary disability or apportionment, but his opinions on injury and apportionment were considered for further development.

From the decision · page 2the applicant's condition cannot be considered permanent and stationary at the present time. She continues with left knee pain and motion limitation. She continues with right shoulder pain and motion limitation. In the absence of medical records, it is not possible to know the extent of medical treatment she has received to date. ... Following a review of the medical records from Kaiser and the recommended MRI scans of the right shoulder and left knee, a more well informed recommendation with regard to her status and need for additional treatment will be possible. The patient was working up until the time of her dismissal. She has subsequently continued working as a housekeeper as she has done during the past 17 years. She indicates that she would have continued working absent her termination. She is not considered temporarily disabled and would be able to return to the work she was performing with ABM Services. (Def. Exh. C, Dr. Johnson, January 18, 2018, p. 11.)

PTPRelied upon · chiropractic

Provided an August 22, 2018 report relevant to injury and temporary disability; report admissibility was affirmed but further consideration needed.

The Board agreed the report should have been admitted but noted no order was made; further proceedings needed to address its impact on temporary disability.

From the decision · page 1Applicant contends that the August 22, 2018 report from primary treating physician (PTP) Waleed Jean Kattar, D.C., should be admitted into evidence,1 and that applicant is entitled to temporary disability indemnity benefits for the period from June 3, 3017, through August 22, 2018.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code 5705

Burden of proof rests upon the party holding the affirmative of the issue.

Applied to temporary disability and injury issues.

From the decision · page 4When an industrial injury causes an employee to be restricted from working, either totally or partially, the employee may be entitled to receive temporary disability indemnity. (Lab. Code § 4650, 4653, 4655 and 4656). The employer's obligation to pay temporary disability benefits is the result of the employee's inability to perform the tasks usually required by his or her employment, and the wage loss resulting therefrom. (Meeks Building Center v. Workers' Comp. Appeals Bd., (2012) 207 Cal.App.4th 219 [77 Cal.Comp.Cases 615].) It is well established that the burden of proof rests upon the party holding the affirmative of the issue. (Lab. Code, § 5705; Lantz

Lab. Code 4650, 4653, 4655, 4656

Temporary disability indemnity benefits are payable when an industrial injury restricts work and causes wage loss.

Applied to temporary disability issue.

From the decision · page 4When an industrial injury causes an employee to be restricted from working, either totally or partially, the employee may be entitled to receive temporary disability indemnity. (Lab. Code § 4650, 4653, 4655 and 4656). The employer's obligation to pay temporary disability benefits is the result of the employee's inability to perform the tasks usually required by his or her employment, and the wage loss resulting therefrom. (Meeks Building Center v. Workers' Comp. Appeals Bd., (2012) 207 Cal.App.4th 219 [77 Cal.Comp.Cases 615].) It is well established that the burden of proof rests upon the party holding the affirmative of the issue. (Lab. Code, § 5705; Lantz

Butterball Turkey Co. v. Workers' Comp. Appeals Bd. (Esquivel) (1999 W/D) 65 Cal.Comp.Cases 61

An injured employee terminated for good cause is not entitled to temporary partial disability benefits; employer bears burden to prove good cause.

Applied to termination for cause issue in temporary disability.

From the decision · page 5Further, "An employee is considered temporarily partially disabled if he [or she] is able to earn some income during his [or her] healing period but not his full wages. The disability payment in such event is [two-thirds] of the employee's weekly wage loss." (Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) An injured employee whose employment is terminated for good cause is not entitled to temporary partial disability benefits and the defendant has the burden of proving that the termination was for cause. (Butterball Turkey Co. v. Workers' Comp. Appeals Bd. (Esquivel) (1999 W/D) 65 Cal.Comp.Cases 61.) An employer remains liable for temporary disability benefits after terminating an employee if it fails to establish good cause by showing employee misconduct. (Manpower Temporary Services v. Workers' Comp. Appeals Bd. (Rodriguez) (2006 W/D) 71 Cal.Comp.Cases 1614.) In this matter, if it is ultimately determined that applicant was temporarily partially disabled as a result of her injury, it will be defendant's burden of proof to show that applicant's employment was terminated for good cause. The only evidence currently in the trial record on that issue is applicant's testimony that as a result

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to further develop the record where evidence is insufficient.

Applied to remand for further development.

From the decision · page 6Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) The Appeals Board has the discretionary authority to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Based on our review of the trial record as discussed above, we agree with the WCJ that the trial record does not contain substantial evidence upon which a decision can be made, and therefore further development of the record is necessary. The record needs further development on the issues submitted for decision, including the issues of body parts injured, permanent disability/apportionment, applicant's temporary disability status, and whether applicant's employment with defendant was terminated for good cause.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Inconsistencies between Dr. Johnson's report and applicant's trial testimony regarding work status and disability.

From the decision · page 5v. Workers' Comp. Appeals Bd. (2014) 226 Cal.App.4th 298, 313 [79 Cal.Comp.Cases 488]; Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289.) Here, our review of the trial record indicates that the only medical report that addresses the issue of applicant's disability status during the period from June 3, 2017, through August 22, 2018, is the January 18, 2018 report from Dr. Johnson, wherein he stated that after review of additional records and diagnostics, "... a more well informed recommendation with regard to her status and need for additional treatment will be possible." (Def. Exh. C, p. 11.) Dr. Johnson then stated that applicant had continued working until the date, "... of her dismissal. She has subsequently continued working as a housekeeper...." and that she would have continued working for defendant had her employment not been terminated. (Def. Exh.

Testimony and credibilityfavours neutral

Lack of substantial evidence on whether applicant's employment was terminated for good cause.

From the decision · page 5Further, "An employee is considered temporarily partially disabled if he [or she] is able to earn some income during his [or her] healing period but not his full wages. The disability payment in such event is [two-thirds] of the employee's weekly wage loss." (Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 257 [34 Cal.Comp.Cases 382].) An injured employee whose employment is terminated for good cause is not entitled to temporary partial disability benefits and the defendant has the burden of proving that the termination was for cause. (Butterball Turkey Co. v. Workers' Comp. Appeals Bd. (Esquivel) (1999 W/D) 65 Cal.Comp.Cases 61.) An employer remains liable for temporary disability benefits after terminating an employee if it fails to establish good cause by showing employee misconduct. (Manpower Temporary Services v. Workers' Comp. Appeals Bd. (Rodriguez) (2006 W/D) 71 Cal.Comp.Cases 1614.) In this matter, if it is ultimately determined that applicant was temporarily partially disabled as a result of her injury, it will be defendant's burden of proof to show that applicant's employment was terminated for good cause. The only evidence currently in the trial record on that issue is applicant's testimony that as a result

ADJ10992726 · April 27, 2021