What the panel ordered
Petition for reconsideration granted; Findings and Order of September 14, 2023 rescinded; new decision awarding temporary disability benefits from September 12, 2022 to October 3, 2023.
Applicant sought reconsideration of the WCJ's Findings and Order of September 14, 2023, which denied temporary disability benefits after September 11, 2022.
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.
Applicant's refusal of modified work was reasonable because the work restrictions and modified duties were not adequately communicated to her, so she was entitled to temporary disability benefits from September 12, 2022 to October 3, 2023.
From the decision · page 2As explained below, applicant's refusal of defendant's modified work offer was reasonable, given that it was not clearly communicated to the applicant how the offer incorporated modified duties commensurate with her condition. We therefore grant reconsideration, rescind the Findings and Order of September 14, 2023, and issue a new decision reflecting entitlement to additional temporary disability benefits from September 12, 2022 to October 3, 2023.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was not made aware by employer of her work restrictions or how the offered work was modified to accommodate her condition.
Favours Applicant prevailed
Without explanation, applicant reasonably believed she could not perform the offered work, making her refusal reasonable and entitling her to temporary disability benefits.
From the decision · page 4We have found that an applicant may be estopped from claiming temporary disability indemnity corresponding to periods that her or she has refused suitable modified work without good cause. (Vittone v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 435 [writ den.] [emphasis added].) However, here we find that applicant had good cause to not report for modified duty until she was told the exact nature of the work. Applicant was not made aware by employer of her work restrictions, or how the work offered was commensurate with those restrictions. As employer's representative testified, the job description read as if it was applicant's regular duties. Without explanation, which was not provided by the employer, applicant could reasonably believe that she was not capable of performing the work offered.
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.
Patient is able to return to work with restrictions: no computer work for more than 1 hour at a time with 10 minutes break, no lifting/pushing/pulling over 10 lbs, no repetitive head bending, no overhead work.
From the decision · page 2Applicant was evaluated by QME Dr. Spokoyny who issued a report dated August 8, 2022. In the report, Dr. Spokoyny wrote that "patient is able to return to work" with restrictions of "no computer work for more that 1 hour at a time with 10 minutes break," "no lifting, pushing pulling > 10 lbs," "no repetitive head bending," and "no overhead work." (August 8, 2022 report at p. 19.) Applicant's PTP Dr. Schweller continued to find applicant temporarily totally disabled through at least July 13, 2023. (June 1, 2023 report at p. 3.)
Found applicant continued to be temporarily totally disabled through at least July 13, 2023.
From the decision · page 2Applicant was evaluated by QME Dr. Spokoyny who issued a report dated August 8, 2022. In the report, Dr. Spokoyny wrote that "patient is able to return to work" with restrictions of "no computer work for more that 1 hour at a time with 10 minutes break," "no lifting, pushing pulling > 10 lbs," "no repetitive head bending," and "no overhead work." (August 8, 2022 report at p. 19.) Applicant's PTP Dr. Schweller continued to find applicant temporarily totally disabled through at least July 13, 2023. (June 1, 2023 report at p. 3.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Vittone v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 435 [writ den.]
Applicant may be estopped from claiming temporary disability indemnity for refusing suitable modified work without good cause.
Applicant's refusal was found reasonable due to lack of clear communication about work restrictions and modifications.
From the decision · page 4We have found that an applicant may be estopped from claiming temporary disability indemnity corresponding to periods that her or she has refused suitable modified work without good cause. (Vittone v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 435 [writ den.] [emphasis added].) However, here we find that applicant had good cause to not report for modified duty until she was told the exact nature of the work. Applicant was not made aware by employer of her work restrictions, or how the work offered was commensurate with those restrictions. As employer's representative testified, the job description read as if it was applicant's regular duties. Without explanation, which was not provided by the employer, applicant could reasonably believe that she was not capable of performing the work offered.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's refusal of modified work was reasonable because the work restrictions and modified duties were not adequately communicated to her.
From the decision · page 2As explained below, applicant's refusal of defendant's modified work offer was reasonable, given that it was not clearly communicated to the applicant how the offer incorporated modified duties commensurate with her condition. We therefore grant reconsideration, rescind the Findings and Order of September 14, 2023, and issue a new decision reflecting entitlement to additional temporary disability benefits from September 12, 2022 to October 3, 2023.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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