ADJ12681295 — California WCAB decision

ADJ12681295 · October 24, 2022

The Appeals Board granted reconsideration, amended the Findings of Fact and Award to remove the temporary disability award due to insufficient evidence, and ordered further development of the record. The remainder of the WCJ's decision was affirmed with amendments to include all stipulated injured body parts.

Issues decided

Medical opinions weighed

Authorities named

District office

Fresno

What the panel ordered

Defendant sought reconsideration of the Findings of Fact, Award and Opinion on Decision issued by the WCJ on August 12, 2022, specifically disputing the award for temporary disability. The WCJ issued a Report and Recommendation to deny the Petition, but the Appeals Board granted reconsideration and ordered further development of the record.

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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/COEApplicant prevailedhead · right arm · left thigh · right thigh · cervical spine · lumbar spine · thoracic spine

The Appeals Board amended the Findings of Fact to include injury AOE/COE to the head, right arm, left thigh, right thigh, cervical spine, lumbar spine and thoracic spine as stipulated by the parties and supported by the record.

From the decision · page 5The parties stipulated at trial to injury arising out of and in the course of employment (AOE/COE) to the head, right arm, left thigh and right thigh. (Amended Minutes of Hearing and Summary of Evidence, April 25, 2022, p. 2.) Although the WCJ noted this in the F&A under the "Stipulated Facts" section, Finding of Fact No. 1 and part A of the Award only notes injury AOE/COE to the cervical spine, lumbar spine, thoracic spine and headaches. Injury AOE/COE to

The facts that decided it

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

The medical records do not indicate any periods of temporary total or partial disability during the disputed period.

Favours Defendant prevailed

This lack of medical evidence undermined the claim for temporary disability and led to the order for further development of the record.

From the decision · page 3The orthopedic QME Dr. Graham re-evaluated applicant on November 17, 2020. In his report, Dr. Graham noted that applicant was laid off from her job with defendant on August 19, 2020. (Defendant's Exhibit B, QME reevaluation report, Scott Graham, M.D., December 14, 2020, p. 6.) Her condition was considered permanent and stationary as of the date of Dr. Graham's examination. (Id. at p. 13.) Dr. Graham opined in relevant part: "Periods of TTD/TPD: The medical records do not indicate any periods of TTD/TPD." (Id.) He noted "None" under the section for work restrictions. (Id. at p. 14.)

Applicant was released to full duty work as of August 19, 2020 by Dr. Gary Hatcher.

Favours Defendant prevailed

This medical opinion conflicted with the claim for temporary disability and supported reconsideration.

From the decision · page 2Applicant continued to receive treatment for her injury subsequent to Dr. Graham's evaluation. Dr. Gary Hatcher issued a report dated August 19, 2020 wherein it was noted that applicant is able to perform usual work. (Defendant's Exhibit F, Doctor's First Report of Occupational Injury or Illness, August 19, 2020, p. 3.) The assessment in the narrative report states in pertinent part: "Pt is being released from care with no objective findings of impairment or need for future medical/ pt is able to continue full duty work." (Id. at p. 7.)

Applicant testified she did not work after termination and began self-treatment with Dr. Butchart.

Favours Applicant prevailed

Applicant's testimony supported the claim for temporary disability, but the record was sparse and required further development.

From the decision · page 4There is conflicting evidence regarding whether applicant was temporarily disabled during the period found by the WCJ. The WCJ in his Report explained that he based the finding of temporary disability on the September 4, 2020 disability claim signed by Dr. Butchart that applicant was incapable of performing her regular or customary work coupled with applicant's testimony that she did not work after her termination and the QME Dr. Graham's finding that her condition was permanent and stationary as of November 17, 2020. (Report, September 9, 2022, pp. 8-9.)2 Applicant had been released to full duty as of August 19, 2020 by another doctor, but

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.

QMERelied upon · orthopedics

Found injury to cervical spine, thoracic spine, lumbar spine caused by industrial injury; condition not at maximum medical improvement as of May 12, 2020; unable to opine on temporary disability without complete records; no work restrictions beyond self-accommodation; re-evaluation on November 17, 2020 found condition permanent and stationary; no periods of temporary total or partial disability indicated; no work restrictions.

The QME's reports were considered in assessing the temporary disability claim, noting lack of medical evidence for TTD/TPD during the disputed period.

From the decision · page 2Scott Graham, M.D. evaluated applicant as the orthopedic QME. In his May 12, 2020 report, Dr. Graham noted that applicant was currently working for defendant and was "off work from 03/30/19 to 04/04/19 when she returned to work." (Exhibit A, QME report, Scott Graham, M.D., May 12, 2020, p. 4.) He also noted that she was "a supervisor working with self- accommodation." (Id. at p. 12.) Dr. Graham found injury to several body parts caused by the specific industrial injury including cervicalgia, thoracalgia and lumbago. (Id. at p. 11.) Her condition was not considered to have reached maximum medical improvement yet. (Id.) Dr. Graham's report states: "Periods of TPD/TTD, I am unable to opine without a complete set of records." (Id. at p. 12.) He did not provide her with work restrictions beyond her continuing to self-accommodate. (Id.)

otherRelied upon

Reported on August 19, 2020 that applicant was able to perform usual work and was released from care with no impairment or need for future medical treatment; able to continue full duty work.

The report was used to show that applicant was released to full duty work as of August 19, 2020, conflicting with the temporary disability claim.

From the decision · page 2Applicant continued to receive treatment for her injury subsequent to Dr. Graham's evaluation. Dr. Gary Hatcher issued a report dated August 19, 2020 wherein it was noted that applicant is able to perform usual work. (Defendant's Exhibit F, Doctor's First Report of Occupational Injury or Illness, August 19, 2020, p. 3.) The assessment in the narrative report states in pertinent part: "Pt is being released from care with no objective findings of impairment or need for future medical/ pt is able to continue full duty work." (Id. at p. 7.)

QMERelied upon · neurology

Supported injury AOE/COE to cervical spine, lumbar spine, thoracic spine and head.

The QME report supported the finding of injury to these body parts as arising out of and in the course of employment.

From the decision · page 6the cervical spine, lumbar spine, thoracic spine and head is supported by the reporting of the orthopedic QME Dr. Graham and the neurological QME Dr. Robert Shorr. (Defendant's Exhibit A, QME report, Scott Graham, M.D., May 12, 2020; Defendant's Exhibit D, QME report, Robert Shorr, M.D., June 29, 2021.) Defendant also does not dispute in its Petition the WCJ's finding of injury AOE/COE to these parts. It is presumed that the lack of finding of injury AOE/COE to the right arm, left thigh and right thigh in the F&A in accordance with the parties' stipulation was an inadvertent omission and will be remedied in the amended decision. (See e.g., Toccalino v. Workers' Comp. Appeals Bd. (1982) 128 Cal.App.3d 543, 558 [47 Cal.Comp.Cases 145]; see also Lab. Code, § 5702; County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114 [65 Cal.Comp.Cases 1].)3

The rules the panel named

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

Lab. Code, §§ 4650-4657; Cal. Code Regs., tit. 8, §§ 9785(a)(8), 10152

Temporary disability indemnity is payable during the time an injured employee is unable to work due to work-related injury and ceases when the employee returns to work, is medically able to return to work, or becomes permanent and stationary.

Applied to assess the entitlement to temporary disability benefits in this case.

From the decision · page 3Temporary disability indemnity is a workers' compensation benefit which is paid during the time an injured employee is unable to work because of a work-related injury and is primarily intended to substitute for lost wages. (Gonzales v. Workers' Comp. Appeals Board (1998) 68

Lab. Code, §§ 5903, 5952(d); Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Decisions of the Appeals Board must be supported by substantial evidence, meaning credible and reasonable evidence with probative force on the issues.

Applied to evaluate the sufficiency of evidence supporting the temporary disability award.

From the decision · page 4Decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; Le Vesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis and citations omitted.)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Lab. Code, §§ 5701, 5906

The Appeals Board has discretionary authority to develop the record when the medical record is not substantial evidence or to provide due process and fully adjudicate issues.

Applied to justify ordering further development of the record for temporary disability.

From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.) The Appeals Board also has a constitutional mandate to "ensure substantial justice in all cases" and may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403-404 [65 Cal.Comp.Cases 264].) The "Board may act to develop the record with new evidence if, for example, it concludes that neither side has presented substantial evidence on which a decision could be based, and even that this principle may be appropriately applied in favor of the employee." (San Bernardino Cmty. Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928, 937-938 [64 Cal.Comp.Cases 986].)

ADJ12681295 · October 24, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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