ADJ12340832 · September 14, 2022

The WCJ awarded credit for TTD overpayment without evidence or explanation; the WCAB deferred this issue for further proceedings to create a record and consider legal principles.

From the decision · page 8Accordingly, we affirm the F&A, except that we defer the issue of whether defendant was entitled to the credit for temporary disability overpayments. (Finding of Fact 7, Award "a," and Further Award.)

Applicant's petition for reconsideration failed to specify grounds or evidence supporting appeal.

Favours Defendant prevailed

This procedural deficiency justified denial of reconsideration on substantive grounds.

From the decision · page 5In addition, WCAB Rule 10945 provides that a petitioner seeking reconsideration is to state each contention clearly and separately, and to set forth all the material evidence relevant to the point or points at issue. (Cal. Code Regs., tit. 8, § 10945.) WCAB Rule 10972 provides that "[a] petition for reconsideration, removal or disqualification may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved." (Cal. Code Regs., tit. 8, § 10972.) Here, the Notice of Appeal offers no grounds for why the August 3, 2021 F&A is unjust or unlawful, and contains no general statement of the evidence or reference to the evidentiary record. In short, applicant's petition is "skeletal," and is subject to dismissal pursuant to WCAB Rule 10972.

Defendant submitted no evidence at trial supporting credit for temporary disability overpayment.

Favours Applicant prevailed

Lack of evidence prevented proper adjudication of credit issue, leading to deferral for further proceedings.

From the decision · page 6Irrespective of the fact that applicant's petition for reconsideration is defective, we have independently reviewed the record in this matter, and we observe that the award of credit to the defendant for temporary disability overpayment requires further explanation.

Diagnosed L1 compression fracture; opined applicant was temporarily totally disabled for about 6 months post-injury, then worked with restrictions; declared permanent and stationary as of October 29, 2019.

From the decision · page 3the applicant returns to this office reporting no significant change since last being seen. The MRI report dated 05/22/19 shows a 30% compression fracture of L1 and a minimal compression fracture of 15% of T12. I agree with those findings, a 15% compression fracture of T12 and a 30% compression fracture of L1. Dr. Glousman released him from care in October 2019. He is permanent and stationary at this time. He reasonably was temporarily totally disabled for the reported period of about 6 months after the injury, then worked with restrictions for about two months which was also reasonable. He went back off work after two months because his employer could no longer accommodate his work restrictions. He has been temporarily totally disabled up until October 30, 2019, when Dr. Glousman released her [sic] from care because of that he remains PERMANENT AND STATIONARY. (Ex. 9, Report of AME David Wood, M.D., dated January 8, 2020, p.11.)

Noted possible subacute compression fracture at T12; ongoing symptoms and need for further MRI studies and physical therapy.

From the decision · page 2On August 19, 2019, applicant's treating physician Alexander Richter, M.D., noted that applicant possibly also sustained a subacute compression fracture at T12, and that applicant needed ongoing physical therapy. (Ex. 12, report of Alexander Richter, M.D., dated August 19, 2019, with attached lumbar spine MRI studies, dated August 30, 2019 and May 22, 2019, P. 5.) Dr. Richter requested further MRI studies of the mid and low back. Applicant continued to receive physical therapy through September 2019. (Ex. 6, Physical Therapy Report of Ann Padua, dated September 17, 2019.) On September 23, 2019, applicant reported to his treating physician Dr. Richter that the back pain in the thoracolumbar region was constant, and was exacerbated with activity. (Ex. 13, Report of Alexander Richter, M.D., dated September 23, 2019, p.3.)

Declared applicant permanent and stationary on October 29, 2019, assigned permanent work restrictions and whole person impairment, and indicated need for future medical care.

From the decision · page 2On October 29, 2019, primary treating physician (PTP) Dr. Glousman reevaluated applicant, and declared him permanent and stationary. Dr. Glousman assigned permanent work restrictions, whole person impairment, and indicated that there was need for future medical care. (Ex. 2, Report of Ronald Glousman, M.D., dated October 29, 2019, p.5.)

Labor Code section 5903

Labor Code section 5903 lists grounds for reconsideration including excess of powers, fraud, insufficient evidence, new evidence, and unsupported findings.

Applicant's petition did not specify grounds, violating section 5903 requirements.

From the decision · page 5At any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a workers' compensation judge granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds and no other:

Labor Code section 5902

Labor Code section 5902 requires a petition for reconsideration to set forth specific grounds for appeal.

Applicant's petition was skeletal and failed to specify grounds, supporting dismissal.

From the decision · page 5forth specifically and in full detail the grounds upon which the petitioner considers the final order, decision or award made and filed by the appeals board or a workers' compensation judge to be unjust or unlawful, and every issue to be considered by the appeals board."1 (Lab. Code § 5902.) The statute also requires that the petition contain a general statement of any evidence or other matters which the party seeking reconsideration relies upon. Section 5903 provides:

WCAB Rule 10945

WCAB Rule 10945 requires clear and separate statement of contentions with material evidence.

Applicant's petition failed to meet this requirement.

From the decision · page 5In addition, WCAB Rule 10945 provides that a petitioner seeking reconsideration is to state each contention clearly and separately, and to set forth all the material evidence relevant to the point or points at issue. (Cal. Code Regs., tit. 8, § 10945.) WCAB Rule 10972 provides that "[a] petition for reconsideration, removal or disqualification may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved." (Cal. Code Regs., tit. 8, § 10972.) Here, the Notice of Appeal offers no grounds for why the August 3, 2021 F&A is unjust or unlawful, and contains no general statement of the evidence or reference to the evidentiary record. In short, applicant's petition is "skeletal," and is subject to dismissal pursuant to WCAB Rule 10972.

WCAB Rule 10972

WCAB Rule 10972 allows denial or dismissal of petitions unsupported by specific record references and legal principles.

Applicant's skeletal petition was subject to dismissal under this rule.

From the decision · page 5In addition, WCAB Rule 10945 provides that a petitioner seeking reconsideration is to state each contention clearly and separately, and to set forth all the material evidence relevant to the point or points at issue. (Cal. Code Regs., tit. 8, § 10945.) WCAB Rule 10972 provides that "[a] petition for reconsideration, removal or disqualification may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved." (Cal. Code Regs., tit. 8, § 10972.) Here, the Notice of Appeal offers no grounds for why the August 3, 2021 F&A is unjust or unlawful, and contains no general statement of the evidence or reference to the evidentiary record. In short, applicant's petition is "skeletal," and is subject to dismissal pursuant to WCAB Rule 10972.

Labor Code section 4909

Labor Code section 4909 allows credit for overpayment of temporary disability indemnity under certain conditions.

Credit for temporary disability overpayment requires evidence and explanation.

From the decision · page 6Under section 4909, the Appeals Board may take into account an overpayment of temporary disability in fixing the amount of compensation to be paid. (Lab. Code, § 4909.) In Sea- Land Service, Inc. v. Workers' Comp. Appeals Bd. (1996) 14 Cal.4th 76 [61 Cal.Comp.Cases 1360], the Supreme Court stated:

Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827

Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 explains the distinct purposes of temporary and permanent disability indemnity and cautions against disruptive credits.

Credit for TTD overpayment against permanent disability requires careful consideration to avoid undermining permanent disability purpose.

From the decision · page 7In determining whether a credit should be allowed, the Appeals Board must decide whether allowing a credit for temporary disability overpayment against permanent disability indemnity is disruptive to, or destructive of, the purpose of permanent disability. The court of appeal in Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827, 829 [45 Cal.Comp.Cases 1106] observed:

Sea-Land Service, Inc. v. Workers' Comp. Appeals Bd. (1996) 14 Cal.4th 76

Sea-Land Service, Inc. v. Workers' Comp. Appeals Bd. (1996) 14 Cal.4th 76 permits credit for overpayments made voluntarily or as advances on compensation.

Credit for temporary disability overpayment is allowed under certain conditions.

From the decision · page 6Under section 4909, the Appeals Board may take into account an overpayment of temporary disability in fixing the amount of compensation to be paid. (Lab. Code, § 4909.) In Sea- Land Service, Inc. v. Workers' Comp. Appeals Bd. (1996) 14 Cal.4th 76 [61 Cal.Comp.Cases 1360], the Supreme Court stated:

Applicant's petition for reconsideration was skeletal and failed to specify grounds for appeal, favoring dismissal of the petition.

From the decision · page 5In addition, WCAB Rule 10945 provides that a petitioner seeking reconsideration is to state each contention clearly and separately, and to set forth all the material evidence relevant to the point or points at issue. (Cal. Code Regs., tit. 8, § 10945.) WCAB Rule 10972 provides that "[a] petition for reconsideration, removal or disqualification may be denied or dismissed if it is unsupported by specific references to the record and to the principles of law involved." (Cal. Code Regs., tit. 8, § 10972.) Here, the Notice of Appeal offers no grounds for why the August 3, 2021 F&A is unjust or unlawful, and contains no general statement of the evidence or reference to the evidentiary record. In short, applicant's petition is "skeletal," and is subject to dismissal pursuant to WCAB Rule 10972.