What the panel ordered
Petition for reconsideration granted in part; Findings and Award affirmed except issues of temporary disability period, LC 4850 benefits entitlement, lien, and attorney fees deferred and remanded to WCJ for further proceedings.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on December 28, 2020, challenging the temporary total disability period and indemnity rate, among other issues.
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 WCJ and WCAB found no substantial evidence supporting the temporary total disability period from May 16, 2018, through July 16, 2019, and deferred the issue for further medical clarification.
From the decision · page 5Accordingly, we grant reconsideration and affirm the F&A except that we amend the F&A to defer the issues of: the period of applicant's temporary disability (Finding of Fact 4); applicant's entitlement to Labor Code section 4850 benefits (Finding of Fact 5); the lien of the California Association of Professional Firefighters (Finding of Fact 6); and the amount of attorney fees owed to applicant's counsel, based on the award of temporary disability indemnity and Labor Code section 4850 benefits (Finding of Fact 7). Based thereon we amend the Award and return the matter to the WCJ for further proceedings consistent with this opinion.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No substantial evidence that applicant was temporarily totally disabled from May 16, 2018, through July 16, 2019.
Favours Defendant prevailed
This lack of evidence led the Board to defer the issue of the temporary disability period for further medical clarification.
From the decision · page 4We agree with the WCJ that different permanent and stationary dates identified by Dr. Stark are difficult to reconcile but having reviewed the trial record we see no substantial evidence that applicant was temporarily totally disabled for the period from May 16, 2018, through July 16, 2019. Further, although having been reviewed and considered by the WCJ, the reports from treating physicians Paul Hong and Alan Gruenefeldt are not evidence that applicant was temporarily totally disabled as a result of his injury. For example, we note that Dr. Hong's May 11, 2018 report indicates that applicant's condition is not related to his employment (App. Exh. 1, Dr. Hong, May 11, 2018) and Dr. Gruenefeldt's December 13, 2018 report states, "He [applicant] is being followed for illness." (App. Exh. 4, Dr. Gruenefeldt, December 13, 2018.) Clearly, these reports are not substantial evidence as to the issue of applicant's temporary disability status.
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.
Diagnosed cervical spondylosis, chronic low back pain, probable carpal tunnel syndrome; stated cervical spine condition permanent and stationary since May 9, 2018; lumbar spine permanent and stationary since discontinuation of work.
Dr. Stark's reports were reviewed but found conflicting on permanent and stationary dates; further clarification recommended.
From the decision · page 2On July 11, 2019, applicant was evaluated by the physical medicine and rehabilitation agreed medical examiner (AME) James B. Stark, M.D. (Joint Exh. AA, Dr. Stark, July 16, 2019.) Dr. Stark examined applicant, took a history, and reviewed the medical record. In the record review Dr. Stark summarized a January 3, 2019 QME report from James B. Shaw, M.D., that stated:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627
Substantial evidence required to support Appeals Board decisions.
The Board found no substantial evidence for the temporary disability period and deferred the issue for further development.
From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or where there is insufficient evidence to determine an issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].)
What proof carried it
The evidence the panel weighed, by kind.
Reports from treating physicians Dr. Hong and Dr. Gruenefeldt did not provide substantial evidence of temporary total disability.
From the decision · page 4We agree with the WCJ that different permanent and stationary dates identified by Dr. Stark are difficult to reconcile but having reviewed the trial record we see no substantial evidence that applicant was temporarily totally disabled for the period from May 16, 2018, through July 16, 2019. Further, although having been reviewed and considered by the WCJ, the reports from treating physicians Paul Hong and Alan Gruenefeldt are not evidence that applicant was temporarily totally disabled as a result of his injury. For example, we note that Dr. Hong's May 11, 2018 report indicates that applicant's condition is not related to his employment (App. Exh. 1, Dr. Hong, May 11, 2018) and Dr. Gruenefeldt's December 13, 2018 report states, "He [applicant] is being followed for illness." (App. Exh. 4, Dr. Gruenefeldt, December 13, 2018.) Clearly, these reports are not substantial evidence as to the issue of applicant's temporary disability status.
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About this page
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