What the panel ordered
The WCAB rescinded the Findings and Award issued by the WCJ on June 2, 2021, and returned the matter to the trial level for further proceedings consistent with the opinion.
Defendant sought reconsideration or removal of the Findings and Award issued by the WCJ on June 2, 2021, which found applicant entitled to temporary total disability from March 5, 2020 to present for the August 24, 2017 injury. The WCJ issued a Report recommending denial of defendant's petition. The WCAB granted reconsideration to further study factual and legal issues and rescinded the F&A, returning the matter to trial for further proceedings.
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 record was insufficient to determine if the periods of temporary disability for the two injuries overlapped, which affects the 104 compensable week cap for aggregate temporary disability payments. The WCAB rescinded the F&A and remanded for further development of the record on this issue.
From the decision · page 12The record indicates that applicant had work restrictions for both her right arm and back (i.e., for each specific injury) toward the end of 2017. However, we cannot determine based on the current record if the entire period during which she was paid temporary disability either by EDD or defendant for the April 28, 2017 injury (ADJ11064890) overlaps with period(s) during which she also had work restrictions with respect to the August 24, 2017 injury (ADJ11064901). Consequently, we will rescind the F&A and return this matter for further development of the record regarding whether the periods of temporary disability for the two injuries overlap.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant had work restrictions for both right arm and back injuries toward the end of 2017.
Favours neutral
This fact is relevant to determining if the temporary disability periods for the two injuries overlap, which affects the 104-week cap on aggregate temporary disability payments.
From the decision · page 12The record indicates that applicant had work restrictions for both her right arm and back (i.e., for each specific injury) toward the end of 2017. However, we cannot determine based on the current record if the entire period during which she was paid temporary disability either by EDD or defendant for the April 28, 2017 injury (ADJ11064890) overlaps with period(s) during which she also had work restrictions with respect to the August 24, 2017 injury (ADJ11064901). Consequently, we will rescind the F&A and return this matter for further development of the record regarding whether the periods of temporary disability for the two injuries overlap.
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. Gupta opined that the patient should have been placed on temporary partial disability (TPD) since his initial evaluation on 2/3/20 and that there were no periods of temporary total disability (TTD) for the 8/24/17 claim.
Dr. Gupta reviewed medical records and opined on the temporary disability status for the 8/24/17 injury, stating no periods of TTD but periods of TPD.
From the decision · page 7I have been asked to comment on medical records from her previous PTP Dr. Glenn Nusbaum and QME evaluation dated 1/30/18 by Dr. Karras to address TTD status of her lumbar spine. In my previous supplemental report, I stated that I was unaware of any previous TTD (temporary total disability) periods for
Dr. Seemann provided work status reports indicating return to work with restrictions for the injuries.
Work status reports from Dr. Seemann were part of the medical evidence regarding work restrictions and disability status.
From the decision · page 308/25/17 - Work Status Report - US Healthworks Medical Group - Bruno Seemann, M.D.
Dr. Nusbaum diagnosed right de Quervain's tenosynovitis, right carpal tunnel syndrome, and cervical disc herniation with radiculopathy, and provided work restrictions and treatment plans.
Dr. Nusbaum's reports detailed diagnoses, causation, and work restrictions relevant to the disability periods.
From the decision · page 410/24/17 - Primary Treating Physician's Initial Report - Mission Valley Chiropractic Clinic - Glenn C. Nusbaum, D.C.
Dr. Karras provided a QME report summarizing injury history, diagnoses, and work restrictions for both injuries.
Dr. Karras' QME report was a key medical evidence source for work restrictions and disability status.
From the decision · page 3(Defendant's Exhibit D, PQME Report of Dr. Karras, January 30, 2018, pp. 2- 3, emphasis added.)
Dr. Sears provided work status reports with restrictions for the injuries.
Work status reports from Dr. Sears were part of the medical evidence regarding work restrictions and disability status.
From the decision · page 308/28/17 - Work Status Report - US Healthworks Medical Group - Kathryn Sears, M.D.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4656(c)(2)
Labor Code section 4656(c)(2) - 104 compensable weeks cap for aggregate temporary disability payments for injuries occurring on or after January 1, 2008.
The statutory cap applies to both injuries and the issue is whether the temporary disability periods overlap, affecting the cap's application.
From the decision · page 8Both applicant's specific injuries occurred in 2017. Therefore, both injuries are subject to the statutory cap of 104 compensable weeks for aggregate temporary disability payments per Labor Code1 section 4656(c)(2). (Lab. Code, § 4656(c)(2).)2 It is further noted that her cases were consolidated in 2019 and thus, the relevant documentary evidence admitted in one is also part of the record in the other. (Cal. Code Regs., tit. 8, § 10396(e).)
Foster decision
Foster decision - Analysis of overlapping temporary disability periods under Labor Code section 4656(c)(2).
The Foster decision's analysis applies to overlapping temporary disability for multiple injuries, running the 104-week limitation concurrently.
From the decision · page 10Although the Foster decision analyzed section 4656(c)(1), the analysis of overlapping temporary disability outlined in Foster also applies to applicant's cases, which are subject to section 4656(c)(2). Pursuant to Foster, when temporary disability is concurrently caused by two or more injuries, the statutory cap under section 4656(c)(2) for those injuries runs concurrently. Thus, if applicant was temporarily totally disabled due to work restrictions provided for both specific injuries, the 104-week limitation for the injuries runs concurrently.
Dickerman v. San Joaquin (2008)
Dickerman v. San Joaquin (2008) - Distinguishing facts regarding temporary disability payments for multiple injuries.
The Dickerman case was distinguished as inapposite because the defendant accepted and provided benefits for both injuries in this case.
What proof carried it
The evidence the panel weighed, by kind.
Work restrictions for both injuries were in place toward the end of 2017, but the record was insufficient to determine if the temporary disability periods overlapped.
From the decision · page 12The record indicates that applicant had work restrictions for both her right arm and back (i.e., for each specific injury) toward the end of 2017. However, we cannot determine based on the current record if the entire period during which she was paid temporary disability either by EDD or defendant for the April 28, 2017 injury (ADJ11064890) overlaps with period(s) during which she also had work restrictions with respect to the August 24, 2017 injury (ADJ11064901). Consequently, we will rescind the F&A and return this matter for further development of the record regarding whether the periods of temporary disability for the two injuries overlap.
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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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