What the panel ordered
Petition for reconsideration denied; WCJ decision affirmed.
Petition for reconsideration of WCJ Findings of Fact and Opinion on Decision issued February 1, 2022, regarding applicability of 240-week exception to 104-week cap on temporary disability benefits under Labor Code section 4656(c)(3)(C).
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.
The Appeals Board found that the partial removal of the skull does not qualify as an amputation under the statute and Cruz precedent, as the skull is not an external projecting body part or appendage, and there was insufficient medical evidence to support the applicant's contention.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Opinion on Decision (F&O) issued by a workers' compensation administrative law judge (WCJ) on February 1, 2022. In the F&O, the WCJ found that applicant did not qualify for the 240-week exception to the 104-week cap on temporary disability benefits set forth in Labor Code section 4656(c)(3)(C),2 because the partial removal of applicant's skull did not qualify as an "amputation" under the statute, as interpreted by the Appeals Board in Cruz v. Mercedes-Benz of San Francisco (Cruz) (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Partial removal of applicant's skull was not an amputation under Labor Code section 4656(c)(3)(C) and Cruz precedent.
Favours Defendant prevailed
This fact was the basis for denying the 240-week exception to the 104-week cap on temporary disability benefits.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Opinion on Decision (F&O) issued by a workers' compensation administrative law judge (WCJ) on February 1, 2022. In the F&O, the WCJ found that applicant did not qualify for the 240-week exception to the 104-week cap on temporary disability benefits set forth in Labor Code section 4656(c)(3)(C),2 because the partial removal of applicant's skull did not qualify as an "amputation" under the statute, as interpreted by the Appeals Board in Cruz v. Mercedes-Benz of San Francisco (Cruz) (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc).
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.
Dr. Kupfer's report addressed orthopedic injuries but deferred conclusions on neurologic impairment and did not support that the skull removal was an amputation.
Report only addressed orthopedic injuries and deferred neurologic impairment to specialists; insufficient to support amputation claim.
From the decision · page 4First, Dr. Kupfer's report lacks the documentation, facts, or analysis necessary to support the WCJ's conclusion that the partial removal of applicant's skull was not an "amputation," where the report only addresses applicant's orthopedic injuries (bilateral knees, shoulders, and cervical spine), and not applicant's skull injury or replacement. Indeed, Dr. Kupfer specifically deferred any conclusions regarding "any neurologic impairment" of applicant to the "appropriate specialist." (App. Exh. 1, p. 17.) Additionally, although Dr. Kupfer's report does mention two reports generated by an evaluating neurologist, Dr. Thomas Schweller, M.D., said reports are not in evidence.
Operative report described surgery but lacked medical opinion on whether skull removal constituted amputation.
Operative report was a procedural synopsis without medical opinion on amputation issue.
From the decision · page 4Dr. Bergsneider's Operative Report is similarly insufficient. The Operative Report contains a one-paragraph description of the operation procedure itself and a short set of post- operative notes, primarily addressing pre- and post-operative medications and anesthesia and containing the following statements:
Testified in Parco case about thumb shortening as amputation, but no similar evidence here for skull size reduction.
Referenced in comparison to applicant's claim but no substantial medical evidence for skull size reduction in this case.
From the decision · page 10In the Parco case applicant sustained an industrial injury to his left thumb, left hand, and the skin of his left thumb. Applicant suffered second and third degree burns to his left hand and underwent three surgeries on his left hand. The QME, Dr. David Doty testified in his deposition that as a result of applicant's crush injury, tendon damage, and the fracture of his bone and subsequent surgery with the bone removal he had a 7mm shortening of his left thumb. The [Appeals Board] concluded that the 7mm shortening of the thumb constituted the severance or removal of a limb, part of a limb or other body appendage, including both traumatic loss in an industrial and surgical removal treatment of an industrial injury pursuant to section 4656(c)(3)(C).
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4656(c)(3)(C)
Labor Code section 4656(c)(3)(C) 240-week exception for amputations to the 104-week cap on temporary disability benefits.
The Board applied the statute to determine that the partial removal of the skull does not qualify as an amputation under the statute and precedent.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Opinion on Decision (F&O) issued by a workers' compensation administrative law judge (WCJ) on February 1, 2022. In the F&O, the WCJ found that applicant did not qualify for the 240-week exception to the 104-week cap on temporary disability benefits set forth in Labor Code section 4656(c)(3)(C),2 because the partial removal of applicant's skull did not qualify as an "amputation" under the statute, as interpreted by the Appeals Board in Cruz v. Mercedes-Benz of San Francisco (Cruz) (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc).
Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc)
Definition of amputation as severance or removal of a limb, part of a limb, or other body appendage, including traumatic loss or surgical removal during treatment, per Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc).
The Board applied the Cruz definition to reject the applicant's claim that skull removal is an amputation.
From the decision · page 1Applicant seeks reconsideration of the Findings of Fact and Opinion on Decision (F&O) issued by a workers' compensation administrative law judge (WCJ) on February 1, 2022. In the F&O, the WCJ found that applicant did not qualify for the 240-week exception to the 104-week cap on temporary disability benefits set forth in Labor Code section 4656(c)(3)(C),2 because the partial removal of applicant's skull did not qualify as an "amputation" under the statute, as interpreted by the Appeals Board in Cruz v. Mercedes-Benz of San Francisco (Cruz) (2007) 72 Cal.Comp.Cases 1281 (Appeals Board en banc).
What proof carried it
The evidence the panel weighed, by kind.
Lack of substantial medical evidence supporting that skull removal qualifies as amputation.
From the decision · page 9contention that the skull is an appendage.
Sparse medical record with only two exhibits: Dr. Kupfer's report and Dr. Bergsneider's operative report.
From the decision · page 4This matter proceeded to trial with only two exhibits: 1) a medical report from applicant's primary treating physician, Dr. David M. Kupfer, M.D., and 2) an Operative Report created by applicant's neurosurgeon, Dr. Marvin Bergsneider, M.D. (App. Exh. 1; Joint Exh. AA.) This sparse record leaves myriad questions unanswered.
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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.
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