ADJ16801627 · September 15, 2023

The QME report of Dr. Mamigonian was found to constitute substantial medical evidence supporting applicant's entitlement to temporary disability benefits, and defendant's due process objections were rejected.

From the decision · page 5II FACTS Applicant sustained an accepted industrial injury to his thoracic spine on August 26, 2022, while using a jackhammer and carrying asphalt. The applicant was seen by his PTP, Guillermo Perez, PA-C, on 9/20/22, 9/28/22, 10/26/22, 11/8/22, 12/9/22 and 1/25/23. He was treated with pain medications, muscle relaxant, physical therapy, chiropractic treatments and trigger point injections. (Exh. A, Concentra Medical report, 1/25/23.) An MRI of the thoracic spine showed T5-T6 and T4-T5 small right lateral disc protrusions. The applicant was referred for neurosurgery evaluation but continued on full duty work status. (Ibid.) The applicant underwent a QME evaluation with Steven Mamigonian, D.C. on January 25, 2023. The doctor noted the applicant has not worked since December 2022 and was not receiving any disability benefits. (Exh. 1, Dr. Mamigonian QME report, 1/25/23, pg. 2.) The doctor reported that the applicant described constant moderate thoracic spine pain radiating to the bilateral scapulas and arms up to the biceps with numbness and tingling, worse on the right.

The QME report of Dr. Mamigonian constituted substantial medical evidence supporting applicant's entitlement to temporary disability benefits.

Favours Applicant prevailed

The WCJ relied on this report to find applicant entitled to temporary disability indemnity.

From the decision · page 6On June 22, 2023, the undersigned found Dr. Mamigonian's QME report constituted substantial medical evidence and was relied upon to find applicant was entitled to temporary disability indemnity at a rate to be adjusted by the parties with jurisdiction reserved should a dispute arise, from last date worked ongoing, less credit for time worked and benefits paid, including EDD, less attorney fees of 15% of any unpaid benefits, to be paid until such time as the applicant's condition reaches Maximum Medical Improvement, he returns to work or a total of 104 weeks of temporary disability benefits have been paid, whichever occurs first. It is from this Finding and Award that Defendant seeks reconsideration. Applicant has not filed a Response as of the time of this report.

Defendant did not request to call the applicant as a witness at trial and declined to introduce the applicant's deposition as evidence.

Favours Applicant prevailed

This undermined defendant's due process claim and supported denial of reconsideration.

From the decision · page 8Defendant further contends that they were denied their due process right to call the applicant as a witness. In their Petition, the defendant misrepresents the proceedings by stating that they were not allowed to call the applicant as a witness. The defendant did not request to call the applicant as a witness to testify telephonically but rather requested that the Expedited Hearing be continued so that the applicant could be Ordered to appear to testify at trial. For the same reasons as discussed above, the request for continuance was denied. The undersigned inquired as to whether the applicant's deposition had been taken and if so, would allow it to be introduced into evidence in lieu of the applicant's testimony but the defendant declined the introduction of the deposition as evidence.

Applicant is temporarily totally disabled (TTD) due to thoracic spine injury with symptoms including pain radiating to bilateral scapulas and arms, sensory and motor loss, and restricted motion. Additional treatment and diagnostic studies recommended.

The QME report was relied upon as substantial medical evidence to find applicant entitled to temporary disability indemnity.

From the decision · page 5II FACTS Applicant sustained an accepted industrial injury to his thoracic spine on August 26, 2022, while using a jackhammer and carrying asphalt. The applicant was seen by his PTP, Guillermo Perez, PA-C, on 9/20/22, 9/28/22, 10/26/22, 11/8/22, 12/9/22 and 1/25/23. He was treated with pain medications, muscle relaxant, physical therapy, chiropractic treatments and trigger point injections. (Exh. A, Concentra Medical report, 1/25/23.) An MRI of the thoracic spine showed T5-T6 and T4-T5 small right lateral disc protrusions. The applicant was referred for neurosurgery evaluation but continued on full duty work status. (Ibid.) The applicant underwent a QME evaluation with Steven Mamigonian, D.C. on January 25, 2023. The doctor noted the applicant has not worked since December 2022 and was not receiving any disability benefits. (Exh. 1, Dr. Mamigonian QME report, 1/25/23, pg. 2.) The doctor reported that the applicant described constant moderate thoracic spine pain radiating to the bilateral scapulas and arms up to the biceps with numbness and tingling, worse on the right.

Cal. Code Regs., tit. 8, 10305(c)

WCAB Rule 10305(c) - Definition of Appearance

Defines 'appearance' for parties or representatives at hearings.

From the decision · page 1Labor Code section 5700 provides in relevant part that: "Either party may be present at any hearing, in person, by attorney, or by any other agent, and may present testimony pertinent under the pleadings." WCAB Rule 10305(c) states that: "'Appearance' means a party or their representative's presence, pursuant to Labor Code 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305(c).) WCAB Rule 10752, subdivision (a) requires that: "each applicant and defendant shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief," and subdivision (d) states in pertinent part that: "Any appearance not required by this rule may be noticed pursuant to rule 10642 or ordered by the Workers' Compensation Appeals Board." (Cal. Code Regs., tit. 8, § 10752(a), (d).)

Labor Code section 5700

Labor Code section 5700 - Right to be present at hearings

Referenced in context of parties' rights to appear and present testimony at hearings.

From the decision · page 1Labor Code section 5700 provides in relevant part that: "Either party may be present at any hearing, in person, by attorney, or by any other agent, and may present testimony pertinent under the pleadings." WCAB Rule 10305(c) states that: "'Appearance' means a party or their representative's presence, pursuant to Labor Code 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305(c).) WCAB Rule 10752, subdivision (a) requires that: "each applicant and defendant shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief," and subdivision (d) states in pertinent part that: "Any appearance not required by this rule may be noticed pursuant to rule 10642 or ordered by the Workers' Compensation Appeals Board." (Cal. Code Regs., tit. 8, § 10752(a), (d).)

Cal. Code Regs., tit. 8, 10752(a), (d)

WCAB Rule 10752(a), (d) - Appearance requirements

Requires parties or their representatives to appear at hearings in the case in chief.

From the decision · page 1Labor Code section 5700 provides in relevant part that: "Either party may be present at any hearing, in person, by attorney, or by any other agent, and may present testimony pertinent under the pleadings." WCAB Rule 10305(c) states that: "'Appearance' means a party or their representative's presence, pursuant to Labor Code 5700, at any hearing." (Cal. Code Regs., tit. 8, § 10305(c).) WCAB Rule 10752, subdivision (a) requires that: "each applicant and defendant shall appear or have an attorney or non-attorney representative appear at all hearings pertaining to the case in chief," and subdivision (d) states in pertinent part that: "Any appearance not required by this rule may be noticed pursuant to rule 10642 or ordered by the Workers' Compensation Appeals Board." (Cal. Code Regs., tit. 8, § 10752(a), (d).)

Labor Code section 5502(b)

Labor Code section 5502(b) - Expedited Hearing timing

Allows expedited hearing within 30 days of Declaration of Readiness; does not allow continuance for discovery.

Labor Code section 5502(c)

Labor Code section 5502(c) - Priority conference continuance

Allows continuance for discovery at priority conferences, not expedited hearings.

Labor Code section 5502.5

Labor Code section 5502.5 - Continuance standards

Continuances are disfavored and granted only for good cause considering complexity, diligence, and prejudice.

From the decision · page 7Even if a continuance of an Expedited Hearing was allowable, Labor Code § 5502.5 states that a continuance shall not be favored and may only be granted upon a showing of good cause. When determining a request for continuance, the workers' compensation judge shall take into consideration the complexity of the issues, the diligence of the parties, and the prejudice incurred on the part of any party by reasons of granting or denying a continuance.

Defendant did not request to call the applicant as a witness at trial and declined to introduce the applicant's deposition as evidence.

From the decision · page 8Defendant further contends that they were denied their due process right to call the applicant as a witness. In their Petition, the defendant misrepresents the proceedings by stating that they were not allowed to call the applicant as a witness. The defendant did not request to call the applicant as a witness to testify telephonically but rather requested that the Expedited Hearing be continued so that the applicant could be Ordered to appear to testify at trial. For the same reasons as discussed above, the request for continuance was denied. The undersigned inquired as to whether the applicant's deposition had been taken and if so, would allow it to be introduced into evidence in lieu of the applicant's testimony but the defendant declined the introduction of the deposition as evidence.

The QME report was not based on surmise, speculation, conjecture, or incomplete information.

From the decision · page 8There is no indication that the QME's opinions are based on surmise, speculation or conjecture or are based on incomplete or missing information.