What the panel treated as outcome-determinative, and which side it favoured.
Treating physician Dr. Michael Luciano's reports indicated applicant was only partially temporarily disabled from 12/8/2020 to 2/15/2021, not totally temporarily disabled.
Favours Applicant prevailed
This supported denying defendant credit for overpayment of temporary disability for that period under LC 4062 and Edwards.
From the decision · page 4Although the medical record in this matter is at times less than precise, the reports of
treating physician Dr. Michael Luciano and the reports of AME Steven Silbart do provide adequate
opinions upon which to resolve the issues presented. Contrary to Petitioner's assertion, treating
physician Dr. Michael Luciano never stated in any of his three reports submitted into evidence that
applicant was totally temporarily disabled during the time frame from December 8, 2020 through
February 15, 2021. Rather, in each of his reports, dated December 10, 2020, January 29, 2021 and
March 18, 2021 (Applicant's exhibits 1, 2 and 3), Dr. Luciano indicated only that applicant was
released to modified duties. Thus, applicant was partially temporarily disabled during the time
span in dispute from December 8, 2020 to March 1, 2021. Although there was no direct evidence
submitted regarding whether the employer could accommodate these work restrictions, it can be
reasonably inferred that such accommodations were not possible since the parties stipulated that
defendant initiated temporary disability benefits in case ADJ12859018 as of June 9, 2020 and
continued paying those benefits up through March 1, 2021 (Minutes of Hearing dated July 21,
2021 p.3, lines 22-23).
AME Dr. Steven Silbart's February 15, 2021 report found applicant permanent and stationary as of that date.
Favours Defendant prevailed
This supported allowing defendant credit for overpayment of temporary disability from 2/16/2021 to 3/1/2021.
From the decision · page 6However, the principles of Edwards do not mandate that there be no credit allowed for TD
overpayment for the period from February 16, 2021 through March 1, 2021 in the case of
[ADJ12859018]. Dr. Silbart's opinions should be afforded great weight as the parties clearly
respected his expertise in utilizing him as an AME. Although there were some inconsistencies in
Dr. Silbart's reporting, particularly regarding Petitioner's disability status, the opinions expressed
in Dr. Silbart's February 15, 2021 report were definitive and premised upon the cumulative results
of a physical exam of applicant as well as diagnostic studies consisting of an MRI scan and
EMG/NCV testing along with a review of relevant medical records. It was not until that date that
Dr. Silbart opined that applicant had reached a permanent and stationary plateau and assessed and
outlined factors of permanent impairment. Although there is conflict within Dr. Silbart's reports
as to whether applicant was permanent and stationary at an earlier date, there can be no question
that as of February 15, 2021 applicant was permanent and stationary. As such, since defendant
continued to pay temporary disability benefits through March 1, 2021, defendant should be
permitted credit for overpayment of temporary disability for the period February 16, 2021 through
March 1, 2021.
There is no apportionment under Benson and no bad faith by parties; credit for permanent disability advances from ADJ12859017 does not extinguish applicant's recovery in ADJ12859018.
Favours Applicant prevailed
Supported allowing credit for permanent disability advances paid in one case against benefits due in another.
From the decision · page 7As outlined above, multiple factors support the discretionary decision in this matter,
pursuant to Labor Code Section 4909, to allow a credit for permanent disability benefits paid in
case ADJ12859017 to be credited against similar benefits in ADJ12859018 as follows: the medical
evidence in this matter supports only the finding of a cumulative trauma injury; there are no Benson
apportionment issues; this matter does not involve bad faith actions by either party; allowing credit
for permanent disability payments made in 2019 will not deprive applicant of receiving any "new
money" for the ADJ12859018 cumulative trauma injury. Thus, the rationales underpinning the
decisions in Dunehew and Maples are inapplicable to this case. Rather, it is appropriate and
equitable, as well as avoiding any potential double recovery by applicant, that credit be allowed
for permanent disability benefits paid under ADJ12859017 against permanent disability benefits
still owed on ADJ12859018.