What the panel ordered
Petition for Reconsideration granted in part; May 28, 2021 Findings of Fact and Award affirmed except that the issue of temporary disability from November 7, 2019 through July 17, 2020 is deferred and remanded for further proceedings.
Defendant sought reconsideration of the May 28, 2021 Findings of Fact and Award regarding temporary disability entitlement; the WCJ had issued a Report and Recommendation to deny the petition; the Board granted reconsideration to defer the issue of temporary disability for a specific period and remanded 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 Board found that the WCJ did not make an explicit finding of fact regarding temporary disability entitlement for the period November 7, 2019 through July 17, 2020, and therefore deferred the issue for further development of the medical record and adjudication.
From the decision · page 3In this case, we are granting reconsideration to explicitly defer the issue of applicant's entitlement to temporary disability indemnity where the WCJ did not make a finding of fact regarding whether she was entitled to temporary disability. Although it could be argued that the WCJ impliedly determined that applicant was not entitled to temporary disability during that time period based on the discussion in the Opinion on Decision, the Opinion on Decision cannot substitute for an explicit Finding of Fact.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No evidence was offered regarding applicant's treatment or work status between September 23, 2019 and July 17, 2020.
Favours neutral
This lack of evidence prevented the WCJ from making an explicit finding on temporary disability entitlement for that period, leading to deferral and remand.
From the decision · page 2On May 28, 2021, the WCJ issued the Findings of Fact and Award that is the subject of defendant's Petition for Reconsideration. In the Opinion on Decision prepared in conjunction with the Findings of Fact and Award, the WCJ explained that she did not award temporary disability indemnity from November 8, 2019 through July 17, 2020 because "[n]o evidence was offered as to whether or not the applicant was treating on an industrial basis between the September 23, 2019 visit with Dr. Bell and the July 17, 2020 panel QME evaluation, nor was any evidence offered regarding her work status during this period. (May 28, 2021, Opinion on Decision, p. 8.)
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.
Applicant sustained an industrial injury to her left elbow, recommended treatment, and could return to work with restrictions; symptoms were increasing and intervention had not been completed; applicant had not reached maximum medical improvement.
The opinion supports the need for further medical treatment and the question of temporary disability entitlement during the deferred period.
From the decision · page 2FACTS Applicant filed an application for an injury to her left elbow on June 6, 2019. The claim was initially denied. The parties selected Bruce E. Ellison as a panel qualified medical evaluator in the field of orthopedic surgery. In a report issued on August 16, 2020 after a July 17, 2020 examination, Dr. Ellison opined that applicant sustained an industrial injury to her left elbow, recommended a course of treatment and stated that applicant could return to work with restrictions. "Initial recommended work restrictions would typically include no lifting greater than 10 pounds, no pushing or pulling greater than 10 pounds, lifting or extreme use of the upper extremity." (Exh. 5, August 16, 2020, Panel Qualified Medical Evaluation Report, Bruce E. Ellison, M.D., p. 13.) Dr. Ellison indicated that applicant's symptoms were "increasing over time, and the typical intervention for these symptoms has not been pursued to completion." (Ibid.) Dr. Ellison opined that applicant had not yet reached maximum medical improvement. At trial, the parties framed the issues as follows:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5313
Labor Code section 5313 requires the WCJ to make and file findings upon all facts involved in the controversy.
The Board found the WCJ must explicitly find facts on temporary disability entitlement, not imply them from opinion language.
From the decision · page 2ANALYSIS Labor Code section 5313 requires the WCJ to "make and file findings upon all facts involved in the controversy." The determination must be supported by substantial evidence. (Lab. Code, § 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35
Gonzales v. Workers' Comp. Appeals Board (1998) 68 Cal.App.4th 843
Temporary disability indemnity is payable during the time an injured worker is unable to work due to a work-related injury and substitutes for lost wages.
The Board cited this case to explain the purpose of temporary disability indemnity.
From the decision · page 3Temporary disability indemnity is a workers' compensation benefit which is paid during the time an injured worker is unable to work because of a work-related injury and is primarily intended to substitute for lost wages. (Gonzales v. Workers' Comp. Appeals Board (1998) 68 Cal.App.4th 843 [63 Cal.Comp.Cases 1477]; J. T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (Butler) (1984) 153 Cal.App.3d 327, 333 [49 Cal.Comp.Cases 224].) The purpose of temporary disability indemnity is to provide a steady source of income during the time the injured worker is off work. (Gonzales, supra, at p. 1478.)
Labor Code sections 4650-4657
Defendant's liability for temporary disability payments ceases when the employee returns to work, is medically able to return to work, or becomes permanent and stationary.
The Board cited these statutes to explain when temporary disability payments end.
From the decision · page 3Generally, a defendant's liability for temporary disability payments ceases when the employee returns to work, is deemed medically able to return to work, or becomes permanent and stationary. (Lab. Code, § 4650-4657; Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868 [44 Cal.Comp.Cases 798]; Bethlehem Steel Co. v. I.A.C. (Lemons) (1942) 54 Cal.App.2d 585, 586-587 [7 Cal.Comp.Cases 250]; Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227, 236 [58 Cal.Comp.Cases 323].)
What proof carried it
The evidence the panel weighed, by kind.
No evidence was offered regarding applicant's treatment or work status between September 23, 2019 and July 17, 2020.
From the decision · page 2On May 28, 2021, the WCJ issued the Findings of Fact and Award that is the subject of defendant's Petition for Reconsideration. In the Opinion on Decision prepared in conjunction with the Findings of Fact and Award, the WCJ explained that she did not award temporary disability indemnity from November 8, 2019 through July 17, 2020 because "[n]o evidence was offered as to whether or not the applicant was treating on an industrial basis between the September 23, 2019 visit with Dr. Bell and the July 17, 2020 panel QME evaluation, nor was any evidence offered regarding her work status during this period. (May 28, 2021, Opinion on Decision, p. 8.)
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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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