ADJ14370402 — California WCAB decision

What the panel ordered

The Appeals Board granted the petition for reconsideration, rescinded the Findings and Award, and returned the matter to the WCJ for further proceedings and a new decision.

Applicant sought reconsideration of the Findings and Award issued by the WCJ on March 3, 2022, which found temporary total disability from May 27, 2020, through September 8, 2021. The WCJ recommended denial of the petition, but the Appeals Board granted reconsideration and rescinded the F&A, returning the matter to the WCJ for further proceedings.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.

Temporary disabilityRemandedright knee · right ankle · right foot

The record lacked substantial evidence to determine if applicant continued to be temporarily totally disabled after September 8, 2021, and further medical evaluation was needed.

From the decision · page 2The issue submitted for decision was additional periods of temporary total disability: applicant claimed he continued to be temporarily totally disabled for the period from June 13, 2021, to the present an continuing, defendant contended applicant's condition was permanent and stationary as of June 17, 2021, or in the alternative, as of September 8, 2021. (MOH/SOE, p. 2.)

The facts that decided it

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

Dr. Mays stated applicant was temporarily totally disabled through September 8, 2021, but did not provide analysis on permanent and stationary status after that date.

Favours Applicant prevailed

This lack of analysis prevented the Board from determining if applicant continued to be temporarily totally disabled after that date.

From the decision · page 3Here, as noted above, in his initial report Dr. Mays said that applicant had not reached maximal medical improvement (P&S status). (App. Exh. 2, p. 8.) In the supplemental report, Dr. Mays said that applicant was temporarily totally disabled beginning on the date of injury (May 26, 2020) and continuing through September 8, 2021, the date of the evaluation. He then stated that, "There are pending examinations to be reviewed for determination of work status or vocational rehabilitation status." (App. Exh. 1, p. 2.) Dr. Mays' statement that applicant remained temporarily totally disabled "through the date" of his evaluation is not evidence that applicant's condition was P&S as of that date. He noted that there were pending examinations to be reviewed for determining applicant's work status but he provided no further discussion or analysis as to whether applicant's condition had reached maximum medical improvement/P&S status. Also, applicant testified that he was looking for a doctor who would treat his right knee. However, as we noted, the fact that an injured worker may need medical treatment is not in and of itself evidence that the injured worker is temporarily totally disabled. Thus, based on our review of the trial record, we are not able to determine whether applicant continued to be temporarily totally disabled for any period after September 8, 2021.

Applicant testified he was looking for a doctor to treat his right knee but had no upcoming medical treatment appointments.

Favours Defendant prevailed

The Board noted that the need for medical treatment alone does not prove temporary total disability.

From the decision · page 3Here, as noted above, in his initial report Dr. Mays said that applicant had not reached maximal medical improvement (P&S status). (App. Exh. 2, p. 8.) In the supplemental report, Dr. Mays said that applicant was temporarily totally disabled beginning on the date of injury (May 26, 2020) and continuing through September 8, 2021, the date of the evaluation. He then stated that, "There are pending examinations to be reviewed for determination of work status or vocational rehabilitation status." (App. Exh. 1, p. 2.) Dr. Mays' statement that applicant remained temporarily totally disabled "through the date" of his evaluation is not evidence that applicant's condition was P&S as of that date. He noted that there were pending examinations to be reviewed for determining applicant's work status but he provided no further discussion or analysis as to whether applicant's condition had reached maximum medical improvement/P&S status. Also, applicant testified that he was looking for a doctor who would treat his right knee. However, as we noted, the fact that an injured worker may need medical treatment is not in and of itself evidence that the injured worker is temporarily totally disabled. Thus, based on our review of the trial record, we are not able to determine whether applicant continued to be temporarily totally disabled for any period after September 8, 2021.

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 · orthopedic

Applicant was temporarily totally disabled from the date of injury through September 8, 2021, but the record lacked evidence to determine disability status after that date.

Dr. Mays stated applicant had not reached maximal medical improvement and was temporarily totally disabled through the evaluation date, but did not provide analysis on P&S status after that date.

From the decision · page 2On September 8, 2021, QME Dr. Mays evaluated applicant. (App. Exh. 2, John D. Mays, M.D., September 8, 2021.) Dr. Mays examined applicant, took a history, and reviewed the medical record. The diagnoses included a sprain/strain of the right knee, sprain/strain of the right ankle, and open reduction, internal fixation of right talar fracture. (App. Exh. 2, p. 7.) Dr. Mays later stated that:

secondary_treaterPartially credited

Treated applicant's right ankle but not right knee; no treatment for right knee after June 2021.

Applicant testified about treatment history and lack of ongoing treatment for right knee.

From the decision · page 2He got treatment from Dr. Hollander for his right ankle. Dr. Hollander did not treat his right knee. ... Between June of 2021 until now, the applicant has not been provided any treatment for his right knee. The applicant is currently shopping for a new doctor for his right knee, possibly Dr. Degenhardt. ... He has not obtained treatment because he needs to find a doctor who will treat his knee. Right now, as far as the applicant knows, he has no upcoming medical treatment appointments for his injury. (Minutes of Hearing and Summary of Evidence (MOH/SOE), February 7, 2022, pp. 3 § 5.)

secondary_treaterNot substantial evidence · orthopedic

Performed surgery on applicant's right talus fracture on May 27, 2020.

From the decision · page 2by defendant as a journeyman painter on May 26, 2020. Payam Tabrizi, M.D. performed an open reduction and internal fixation (surgery) of applicant's right talus (ankle) fracture on May 27, 2020.

The rules the panel named

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

California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 1528; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155

An injured worker's condition is deemed permanent and stationary when the level of impairment is stable and unlikely to change with or without treatment for a reasonable period.

The Board noted that ongoing medical treatment alone does not prove temporary total disability and that the record lacked evidence to establish disability status after September 8, 2021.

From the decision · page 3An injured worker's condition is deemed permanent and stationary (P&S) when the level of impairment is stable and is unlikely to change with or without treatment for a reasonable period. (California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 1528 [71 Cal.Comp.Cases 139]; Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155 [16 Cal.Comp. Cases 264].) The fact that an injured worker may need on-going and/or future medical treatment is not in and of itself substantial evidence that the injured worker is temporarily totally disabled. It is quite common for an injured worker to be awarded lifetime medical treatment after the injury condition became P&S. (see e.g. DWC-WCAB form 10214(a) - Stipulations with Request for Award.)

Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

A medical opinion must be based on pertinent facts, an adequate examination and history, and must set forth reasoning behind the opinion, not just conclusions.

The Board found Dr. Mays' opinion partially lacking in analysis regarding P&S status after September 8, 2021, requiring further development of the record.

From the decision · page 3It has long been the law that in order to constitute substantial evidence, a medical opinion must be based on pertinent facts and on an adequate examination and history, and it must set forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

ADJ14370402 · May 4, 2022

What the panel ordered

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The facts that decided it

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