ADJ16808800 · January 11, 2024

Applicant was entitled to temporary disability benefits from 2-6-2023 onward because employer failed to offer modified work and applicant was forced to quit due to harassment and worsening condition.

From the decision · page 5The applicant has an accepted bilateral knee injury which occurred on 9-3-2022 while squatting and hearing a pop in both knees. He squatted down as he was holding a case of store product at the Dollar General Store in Ceres California.

Applicant had credible testimony about work restrictions and knee problems with no modified work offered by employer

Favours Applicant prevailed

Supported finding that applicant was entitled to temporary disability benefits.

From the decision · page 6The applicant worked at the Dollar General store for six years and was a manager. He testified very credibly at trial regarding his work note limitations, his knee problems, his discussions with the employer, and his treatment by the employer. He also indicated the type of work that was imposed upon him and that the work became beyond his restrictions and comfort levels despite his best efforts to inform his employer to no avail.

Applicant was harassed by supervisor and work conditions became untenable leading to quitting

Favours Applicant prevailed

Justified applicant's quitting as not a refusal of modified work, supporting temporary disability entitlement.

From the decision · page 7Prior to his last day at work, and after his complaints were given to his manager, the applicant testified that his manager began to berate him in front of the other workers at the store and he felt he was being treated inappropriately. This had never happened before. Due to the lack of any offers regarding modified duties, his complaints to management, and no help at the store, the applicant felt compelled to quit his position in January of 2023.

Defendant did not present evidence of alternative or modified work being available or offered

Favours Applicant prevailed

Employer's failure to prove availability of modified work supported applicant's claim for temporary disability.

From the decision · page 6Defendants did not present witnesses or testimony at trial to oppose the trial testimony offered by the applicant. They are now claiming foul despite their lack of evidence or testimony knowing it was their burden of proof to demonstrate that alternative work would have been offered. Up to and including the day of trial, they still have not put forth any evidence regarding alternative or modified positions at the workplace. The applicant also testified that as a manager, of six years, he had not seen anyone at a modified job position at the workplace and he does not think that there are any positions for a modified duties job.

Applicant is temporarily disabled and has been throughout the time claimed. Report mentions early work restrictions from Concentra.

Supports applicant's claim of temporary disability throughout the claimed period.

From the decision · page 5The PQME is Dr. Gwalini who indicates that the applicant is temporarily disabled and has been throughout the time claimed. Dr. Gwalini's report also mentions the early note from Concentra containing work restrictions. The applicant continues to be temporarily disabled at this time.

Confirmed applicant's work restrictions and physical findings of diffuse tenderness and limp, supporting temporary disability claim.

Supports applicant's claim of ongoing disability and work restrictions after quitting work.

From the decision · page 7After he left work, the applicant was seen again on 2-6-2023 by Dr. Hammer. The evidence indicates that the applicant again had numerous work restrictions that were undisputed by the petitioner/defendant. The medical examination, done at that time, demonstrated diffuse tenderness over the lateral aspects of both knees and a limp towards the left side. Dr. Hammer thoroughly described his job duties fully. The applicant was also placed on restrictions of no kneeling, squatting, or climbing ladders.

Did not provide work restrictions during appointment; noted applicant's frustration and recent quitting of work.

Indicated applicant's frustration and quitting but did not contradict disability claim.

From the decision · page 7There is a report by Dr. Giang dated 1-11-2023 which indicates that the applicant was very frustrated with the workers compensation system, unclear as to why he was seeing the doctor that day, and during that appointment Dr. Giang did not give any recommendations regarding work restrictions. He wanted the applicant to try physical therapy or injections and again the applicant seemed somewhat frustrated with the way that his treatment had gone. He also relayed to the doctor that he had quit work a few days before (which may account for the doctor not placing any work restrictions on the report at that time).

Lab. Code, §§ 4650-4657; Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856

Temporary disability indemnity is payable during the healing period until return to work or permanent and stationary status.

Applied to determine entitlement to temporary disability benefits.

From the decision · page 1Generally, a defendant's liability for temporary disability payments ceases when the employee returns to work, is deemed medically able to return to work, or becomes permanent and stationary. (Lab. Code, § 4650-4657; Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798]; Bethlehem Steel Co. v. I.A.C. (Lemons) (1942) 54 Cal.App.2d 585, 586-587 [7 Cal.Comp.Cases 250]; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 236 [58 Cal.Comp.Cases 323].)

Applicant's credible testimony about work restrictions, knee problems, and lack of modified work offered by employer

From the decision · page 6The applicant worked at the Dollar General store for six years and was a manager. He testified very credibly at trial regarding his work note limitations, his knee problems, his discussions with the employer, and his treatment by the employer. He also indicated the type of work that was imposed upon him and that the work became beyond his restrictions and comfort levels despite his best efforts to inform his employer to no avail.

Employer failed to present witnesses or evidence to show availability or offer of modified work

From the decision · page 6Defendants did not present witnesses or testimony at trial to oppose the trial testimony offered by the applicant. They are now claiming foul despite their lack of evidence or testimony knowing it was their burden of proof to demonstrate that alternative work would have been offered. Up to and including the day of trial, they still have not put forth any evidence regarding alternative or modified positions at the workplace. The applicant also testified that as a manager, of six years, he had not seen anyone at a modified job position at the workplace and he does not think that there are any positions for a modified duties job.

Applicant's complaints of harassment and untenable work conditions leading to quitting

From the decision · page 7Prior to his last day at work, and after his complaints were given to his manager, the applicant testified that his manager began to berate him in front of the other workers at the store and he felt he was being treated inappropriately. This had never happened before. Due to the lack of any offers regarding modified duties, his complaints to management, and no help at the store, the applicant felt compelled to quit his position in January of 2023.