ADJ11078470 · November 1, 2024

The WCJ must revisit whether the industrial injury to the right ankle and foot precluded applicant from fundraising, causing the program closure and job loss, and if so, whether applicant was temporarily disabled from February 1, 2018 and continuing, and whether wage loss was total or partial.

From the decision · page 1The Appeals Board granted reconsideration to study the factual and legal issues. This is our Decision After Reconsideration.

Applicant's right ankle and foot injury prevented her from performing fundraising duties necessary to keep the employer's program funded, leading to program closure and job loss.

Favours Applicant prevailed

If true, this causation supports entitlement to temporary disability benefits due to the industrial injury.

From the decision · page 6DISCUSSION After the industrial injury to applicant's right ankle and right foot on January 31, 2016, her job duties remained the same but she had to modify the way she worked to get them done. Applicant would work from home keeping her ankle elevated. Although applicant's mobility was restricted, she continued to work through January 2018. However, the traveling part of her job was difficult because it required her to use a wheelchair in airports. Applicant testified that she could no longer multitask like she did before to keep the funding coming in, and that this was the reason the employer's program and her job ended on January 31, 2018. Also according to applicant's testimony, her (diminished) mobility has been the same after February 1, 2018. Thus applicant claims entitlement to temporary disability benefits from February 18, 2018 to the present and continuing. (See Minutes of Hearing, August 26, 2020, p.

Assessed right peroneus brevis tendon tear and right ankle possible ligamentous laxity; recommended surgery; noted recurring pain limiting activities.

Reports support the issue of temporary disability after the injury.

From the decision · page 4Rachael Triche, M.D., Orthopedic Surgeon at Cedars-Sinai/Kerlan-Jobe Institute, issued a January 7, 2020 report. His assessment was right peroneus brevis tendon tear, and right ankle possible ligamentous laxity. He was ready to proceed to surgery. Applicant was wearing tall walking boot. She was limited in her activities due to the ankle. She was doing better since last visit. He noted that she may consider surgery since the pain in her ankle has been recurring for the past couple of years and is limiting her activities including walking, hiking, and going to the gym.

Diagnosed right ankle tendon injury, peroneus brevis tear, and ankle instability; recommended surgery; released applicant to sedentary work; supported temporary disability claim.

Reports support the issue of temporary disability after the injury.

From the decision · page 5Frederick Nicola, M.D., Orthopedic Surgeon, has issued three medical reports. He has also diagnosed right ankle tendon injury, peroneus brevis tear and right ankle instability. He also recommends right ankle arthrotomy repair of peroneal tendons and repair of ankle instability. He released the Applicant to return to work with the restrictions of sedentary work. (Applicant's Exhibit 4)

Found applicant may continue work with modifications, precluded from prolonged standing or walking more than one hour, avoid uneven terrain, and use ankle brace; opined applicant may return to same type of work.

Reports support the issue of temporary disability after the injury.

From the decision · page 5Finally, Applicant was evaluated by Qualified Medical Evaluator, Babak Samimi, M.D. on January 14, 2020. The Applicant may continue to work with modifications precluded from prolonged standing or walking more than one hour at a time and she should avoid walking on uneven terrain. She should be allowed to utilize an ankle brace as needed. Based upon her job description, [Dr. Samimi stated that] she may return to the type of work that she was performing. (Joint Exhibit DD)

Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399

Temporary disability is not apportionable.

The WCJ must consider that temporary disability benefits cannot be apportioned when determining the extent of temporary disability.

From the decision · page 7If temporary disability benefits are payable under the circumstances presented here, the next issue is identifying medical evidence that demonstrates applicant was temporarily disabled for the period claimed, i.e., from February 1, 2018 and continuing. In the WCJ's Report, it is stated that "the reports of Dr. Triche, Dr. Nicola and Dr. Samimi are substantial evidence on the issue of temporary disability." However, if the WCJ finds the employer's program was shut down because applicant's right ankle and foot injury prevented her from fundraising to keep it going, the WCJ must specifically identify where the reporting physicians opine that applicant was temporarily disabled after February 1, 2018. Of course, the WCJ may rely on circumstantial evidence and inferences arising from reasonable probabilities flowing from the evidence. (Guerra v. Workers' Comp. Appeals Bd. (Rodas) (2016) 246 Cal.App.4th 1301 [81 Cal.Comp.Cases 324].) To do that, however, the WCJ must specify the medical evidence that may support reasonable inferences applicant was temporarily disabled during the claimed period of February 1, 2018 and continuing.1 At the same time, the WCJ and the parties should note that temporary disability is not apportionable. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399, 405 [33 Cal.Comp.Cases 647].)

Applicant's testimony that her right ankle and foot injury prevented her from fundraising and caused the program closure and job loss

From the decision · page 6DISCUSSION After the industrial injury to applicant's right ankle and right foot on January 31, 2016, her job duties remained the same but she had to modify the way she worked to get them done. Applicant would work from home keeping her ankle elevated. Although applicant's mobility was restricted, she continued to work through January 2018. However, the traveling part of her job was difficult because it required her to use a wheelchair in airports. Applicant testified that she could no longer multitask like she did before to keep the funding coming in, and that this was the reason the employer's program and her job ended on January 31, 2018. Also according to applicant's testimony, her (diminished) mobility has been the same after February 1, 2018. Thus applicant claims entitlement to temporary disability benefits from February 18, 2018 to the present and continuing. (See Minutes of Hearing, August 26, 2020, p.