ADJ12906041 · July 12, 2024

The WCJ allowed defendant credit for the EDD lien settlement, which the WCAB affirmed as consistent with Labor Code sections 4903(f) and 4904 to avoid double recovery and encourage settlement.

From the decision · page 1Applicant, who is representing himself, and defendant have filed separate Petitions for Reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Facts and Order of May 6, 2024, wherein it was found in case ADJ12906041 that "Applicant is entitled to a temporary total disability period from February 1, 2020 until February 1, 2022" and "Defendant is to take credit for the EDD resolution against temporary total disability owed to the Applicant."1 In case ADJ12906041, while employed on October 31, 2019 as a general and trauma surgeon, applicant sustained industrial injury to the psyche and claims injury to the heart, wrists, hands, neck, back, brain, and balance and in the forms of sleep disorder and chest pain.

The issue was not raised at trial and thus not considered by the WCAB.

From the decision · page 3With regard to defendant's contention that it should be granted a credit for temporary disability indemnity payments commencing in December of 2023 and continuing, as noted by the WCJ, this was not raised as an issue at trial, and we therefore do not consider this contention.

The WCJ initially found the temporary disability period started February 1, 2020, but the WCAB found evidence applicant was temporarily disabled starting December 28, 2019, consistent with wage loss and unemployment disability benefits, and limited to 104 weeks under Labor Code section 4656(c)(2).

From the decision · page 1Applicant, who is representing himself, and defendant have filed separate Petitions for Reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Facts and Order of May 6, 2024, wherein it was found in case ADJ12906041 that "Applicant is entitled to a temporary total disability period from February 1, 2020 until February 1, 2022" and "Defendant is to take credit for the EDD resolution against temporary total disability owed to the Applicant."1 In case ADJ12906041, while employed on October 31, 2019 as a general and trauma surgeon, applicant sustained industrial injury to the psyche and claims injury to the heart, wrists, hands, neck, back, brain, and balance and in the forms of sleep disorder and chest pain.

Applicant performed last surgery in December 2019 and rescheduled all patients, indicating wage loss and temporary disability starting then.

Favours Applicant prevailed

Supports earlier start date of temporary disability period than WCJ's original finding.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Applicant received unemployment disability benefits starting December 28, 2019, consistent with temporary disability.

Favours Applicant prevailed

Supports finding of temporary disability from December 28, 2019.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Labor Code sections 4903(f) and 4904 authorize credit for EDD lien settlement to prevent double recovery.

Favours Defendant prevailed

Justifies defendant's credit for EDD lien settlement against temporary disability owed.

From the decision · page 3of commencement of temporary disability payment." With regard to applicant's contention that defendant is not entitled to a credit for its settlement of EDD's lien claim, such a credit is contemplated by Labor Code sections 4903(f) and 4904. Although in this case the defendant paid the entire amount of the lien claim before trial, an absurd result would be reached if sections 4903 and 4904 mandated payment of an unresolved lien at trial, but allowed a credit to be disallowed only because the lien was settled prior to trial. Such a result would disincentivize settlement and lead to double recovery.

Applicant has been temporarily totally disabled since the date of injury.

Applicant's temporary total disability since injury supports the start date of temporary disability.

From the decision · page 2Qualified medical evaluator psychologist Jeffery Coker, Psy.D. opined that applicant has been temporarily totally disabled since the date of injury. (March 16, 2024 report at p. 2.) However, applicant continued working for a short time after his injury and wage loss is a necessary element of compensable temporary disability. (Herrera v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 254, 260 [34 Cal.Comp.Cases 382].) The WCJ determined that applicant was entitled to temporary disability commencing on February 1, 2020 because he "testified at trial that he closed his practice in January 2020" and that "February 1, 2020 was chosen as the start date for temporary disability because, while the Applicant testified at trial that his practice closed in January 2020, an exact date for his practice was not specified." (Opinion on Decision at pp. 2-3 & fn5.)

Labor Code section 4656(c)(2)

Labor Code section 4656(c)(2) limits compensable temporary disability to 104 weeks from date of injury.

Applied to limit temporary disability period to 104 weeks from date of injury.

From the decision · page 2With regard to applicant's other contentions, we affirm the decision. While applicant cites to Hawkins v. Amberwood Products (2007) 72 Cal.Comp.Cases 807 (Appeals Board en banc) for the proposition that he is entitled to more than 104 weeks of temporary disability indemnity, Hawkins interpreted Labor Code section 4656(c)(1) which is only applicable to dates of injury from April 19, 2004 to December 31, 2007. The instant case is subject to section 4656(c)(2) which limits compensable temporary disability to 104 weeks from the date of injury rather than "the date

Labor Code sections 4903(f) and 4904

Labor Code sections 4903(f) and 4904 allow credit for EDD lien settlement against temporary disability benefits.

Applied to affirm credit for EDD lien settlement to avoid double recovery.

From the decision · page 3of commencement of temporary disability payment." With regard to applicant's contention that defendant is not entitled to a credit for its settlement of EDD's lien claim, such a credit is contemplated by Labor Code sections 4903(f) and 4904. Although in this case the defendant paid the entire amount of the lien claim before trial, an absurd result would be reached if sections 4903 and 4904 mandated payment of an unresolved lien at trial, but allowed a credit to be disallowed only because the lien was settled prior to trial. Such a result would disincentivize settlement and lead to double recovery.

Applicant's testimony that he could not focus on work, rescheduled all patients, and performed last surgery in December 2019 supports earlier start date of temporary disability.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Applicant's application for and receipt of unemployment disability benefits supports temporary disability from December 28, 2019.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.