ADJ12278560 · September 20, 2022

The WCJ found Dr. Roberts' permanent disability rating appropriate and supported by applicant's lack of pain but significant loss of strength, and no challenge was made to the rating until appeal, with no cross-examination of Dr. Roberts.

From the decision · page 7Defendant's failed to object to the rating instructions issued by the WCJ on May 3, 2022, nor did they make any effort to request cross examination of the rater. The issue raised their Petition for Reconsideration is that the report of Dr. Roberts cannot use loss of strength as a factor of impairment in the face of pain. Defendants argue that "pain at the level reported would prevent the effective application of maximal force during strength testing." There is, however, no evidence to support that fact, especially when the applicant reported to Dr. Roberts that he did not have pain. However, Dr. Roberts did indicate that the applicant had suffered a massive non-repairable rotator cuff tear in the left shoulder, accompanied by rotator cuff arthroplasty and rupture of the long head of the biceps tendon. He said that there was weakness in the left shoulder to abduction, flexion, internal and external rotation. (March 12, 2020, page 24, para 3).

The WCJ found no substantial medical evidence supporting additional temporary disability after March 12, 2020, based on the credible PQME report of Dr. Antoine Roberts who declared applicant MMI and the denial of surgery by IMR, with applicant's declination of surgery and lack of substantial evidence from Dr. Bahk supporting continuing temporary disability.

From the decision · page 4The matter was tried and the WCJ issued an F&A dated June 29, 2022. Applicant file a timely verified Petition for Reconsideration on the issue of applicant's entitlement to additional temporary disability (TD) payments during the period from 7/22/20 when Dr. Bahk, a treating doctor was requesting a reverse total left shoulder replacement, until 3/29/21, when the procedure was denied by IMR. Applicant argues that under the Braewood case, (1983) 48 CCC 566, he is entitled to TD until the 104 week limit described in Labor Code Section 4656 (c) (2), is reached. Applicant asserts that the WCI' s finding that applicant is entitled to TD from September 8, 2018 to March 12, 2020, based on the PQME reports of Dr. Antoine Roberts is not supported by the evidence and should be set aside. He further asserts that attorney fees awarded should be adjusted accordingly.

PQME Dr. Antoine Roberts declared applicant MMI on March 12, 2020, finding no pain but significant loss of strength in left shoulder.

Favours Defendant prevailed

Supported denial of additional temporary disability benefits after this date.

From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised that he should have surgery for replacement of his left shoulder with a reverse arthroplasty. However, the applicant did not know what was involved and according to the history noted in the March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3, para 5-6). The report states that the applicant's only complaint was his inability to lift his arm against gravity. Dr. Roberts concluded that the applicant should have future medical care for the left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic pain from the left shoulder, he should have the option to proceed with a reverse total shoulder arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.) He was declared MMI in that report of March 12, 2020.

Applicant declined reverse total shoulder arthroplasty surgery after being informed of risks and lack of pain.

Favours Defendant prevailed

Applicant's declination and lack of pain supported denial of continuing temporary disability.

From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised that he should have surgery for replacement of his left shoulder with a reverse arthroplasty. However, the applicant did not know what was involved and according to the history noted in the March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3, para 5-6). The report states that the applicant's only complaint was his inability to lift his arm against gravity. Dr. Roberts concluded that the applicant should have future medical care for the left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic pain from the left shoulder, he should have the option to proceed with a reverse total shoulder arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.) He was declared MMI in that report of March 12, 2020.

IMR denied surgery as medically unnecessary, with no clear documentation of significant deficits.

Favours Defendant prevailed

Denial of surgery by IMR removed basis for continuing temporary disability.

Dr. Bahk's reports lacked explanation or work restrictions and were not substantial evidence of continuing temporary disability.

Favours Defendant prevailed

Weighed against applicant's claim for additional temporary disability.

From the decision · page 4At trial, the parties stipulated to the TD paid. The claimed overpayment was in dispute, however, the WCJ found the overpayment valid based on the PQME report of Dr. Roberts who declared him MMI on March 12, 2020. Applicant raised the issue of entitlement to additional temporary disability from September 18, 2018 through January 31, 2019, and from August 5, 2019 to date and continuing. Applicant claimed that he was not yet MMI based on the reports of Dr. Bahk. In their Petition for Reconsideration, applicant states that he should have been TD from at least 7/22/20 to 3/29/21, when the IMR denied the surgery.

Dr. Roberts' permanent disability rating based on strength deficits and loss of function was unchallenged until appeal and found appropriate.

Favours Applicant prevailed

Supported applicant's claim for permanent disability rating.

From the decision · page 7Defendant's failed to object to the rating instructions issued by the WCJ on May 3, 2022, nor did they make any effort to request cross examination of the rater. The issue raised their Petition for Reconsideration is that the report of Dr. Roberts cannot use loss of strength as a factor of impairment in the face of pain. Defendants argue that "pain at the level reported would prevent the effective application of maximal force during strength testing." There is, however, no evidence to support that fact, especially when the applicant reported to Dr. Roberts that he did not have pain. However, Dr. Roberts did indicate that the applicant had suffered a massive non-repairable rotator cuff tear in the left shoulder, accompanied by rotator cuff arthroplasty and rupture of the long head of the biceps tendon. He said that there was weakness in the left shoulder to abduction, flexion, internal and external rotation. (March 12, 2020, page 24, para 3).

Declared applicant MMI on March 12, 2020; found applicant had no pain but significant loss of strength in left shoulder; rated permanent disability based on strength deficits and loss of function; supported denial of additional temporary disability after MMI date.

Dr. Roberts' report declared MMI and found no pain but significant strength loss, supporting denial of additional temporary disability.

From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised that he should have surgery for replacement of his left shoulder with a reverse arthroplasty. However, the applicant did not know what was involved and according to the history noted in the March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3, para 5-6). The report states that the applicant's only complaint was his inability to lift his arm against gravity. Dr. Roberts concluded that the applicant should have future medical care for the left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic pain from the left shoulder, he should have the option to proceed with a reverse total shoulder arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.) He was declared MMI in that report of March 12, 2020.

Continued to find applicant temporarily totally disabled without explanation or work restrictions; reports not substantial evidence for temporary disability.

Dr. Bahk's reports lacked explanation and work restrictions, thus not substantial evidence for continuing temporary disability.

From the decision · page 4The matter was tried and the WCJ issued an F&A dated June 29, 2022. Applicant file a timely verified Petition for Reconsideration on the issue of applicant's entitlement to additional temporary disability (TD) payments during the period from 7/22/20 when Dr. Bahk, a treating doctor was requesting a reverse total left shoulder replacement, until 3/29/21, when the procedure was denied by IMR. Applicant argues that under the Braewood case, (1983) 48 CCC 566, he is entitled to TD until the 104 week limit described in Labor Code Section 4656 (c) (2), is reached. Applicant asserts that the WCI' s finding that applicant is entitled to TD from September 8, 2018 to March 12, 2020, based on the PQME reports of Dr. Antoine Roberts is not supported by the evidence and should be set aside. He further asserts that attorney fees awarded should be adjusted accordingly.

In Keltner case cited, AME Renbaum's finding of permanent and stationary status despite UR denial of surgery was upheld as substantial evidence; supports denial of continuing temporary disability when surgery denied by UR and IMR.

The panel cited Keltner case where AME Renbaum's finding of permanent and stationary status was upheld despite UR denial of surgery, supporting denial of continuing temporary disability here.

Performed left shoulder surgery on October 24, 2018; no further opinion on disability or rating in this decision.

From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised that he should have surgery for replacement of his left shoulder with a reverse arthroplasty. However, the applicant did not know what was involved and according to the history noted in the March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3, para 5-6). The report states that the applicant's only complaint was his inability to lift his arm against gravity. Dr. Roberts concluded that the applicant should have future medical care for the left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic pain from the left shoulder, he should have the option to proceed with a reverse total shoulder arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.) He was declared MMI in that report of March 12, 2020.

Temporary disability is the incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment.

Applied to evaluate applicant's entitlement to additional temporary disability benefits.

From the decision · page 7applicant's complaints to the left shoulder are the same. They provided no analysis as to why the applicant is temporarily totally disabled. In fact, they contain no indication of what work the applicant is unable to perform. No work restrictions are provided. The term "temporary disability" is not specifically defined in the Labor Code, however, appellate decisions interpreting the workers' compensation laws have provided definition. Temporary disability has been classified as the incapacity to work that is reasonably expected to be cured or materially improved with proper medical treatment.

Almaraz/Guzman

Use of loss of strength in impairment rating under AMA Guides is appropriate when pain does not prevent maximal force application.

Applied to uphold Dr. Roberts' permanent disability rating using strength deficits despite defendant's objection.

From the decision · page 7Defendant's failed to object to the rating instructions issued by the WCJ on May 3, 2022, nor did they make any effort to request cross examination of the rater. The issue raised their Petition for Reconsideration is that the report of Dr. Roberts cannot use loss of strength as a factor of impairment in the face of pain. Defendants argue that "pain at the level reported would prevent the effective application of maximal force during strength testing." There is, however, no evidence to support that fact, especially when the applicant reported to Dr. Roberts that he did not have pain. However, Dr. Roberts did indicate that the applicant had suffered a massive non-repairable rotator cuff tear in the left shoulder, accompanied by rotator cuff arthroplasty and rupture of the long head of the biceps tendon. He said that there was weakness in the left shoulder to abduction, flexion, internal and external rotation. (March 12, 2020, page 24, para 3).

Applicant's unreliable memory and inconsistent testimony at trial

From the decision · page 5At trial, the applicant denied telling either Dr. Bahk or Dr. Roberts that he did not want to undergo the surgery, however, he did admit that he was hesitant because he thought he might not have a good result. (SOE, Page 7, lines15-19). The WCJ found applicant's testimony on this issue to be unreliable. Throughout his testimony at trial, the applicant reversed his testimony on several issues including whether he went back to modified work after September 8, 2018. (SOE, page 8, lines 9-11). He did not recall getting a second letter from his employer about light duty, (SOE, page 8, lines4-5); He first said that he did go back for transitional work but then changed his testimony to say that he did not recall. (SOE Page 8, lines12-15). He did not recall going to Kaiser in 2012 although the records confirm he did. (SOE Page 9, line 2) He also did not recall the time period of his light duty or his exact time of employment with the Defendant. (SOE, page 9 (lines 6-9).

IMR decision denying surgery and lack of pending approved medical treatment