ADJ18364465 — California WCAB decision

What the panel ordered

The Appeals Board denied Defendant's Petition for Reconsideration of the WCJ's October 3, 2025 Findings and Award.

Defendant filed a Petition for Reconsideration of the October 3, 2025 Findings of Fact and Award; the WCJ prepared a Report and Recommendation to deny the petition; the Appeals Board adopted the WCJ's Report and denied the petition.

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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.

Temporary disabilityApplicant prevailedlumbar spine

Applicant's retirement was due to his industrial injury and not a voluntary withdrawal from the labor market; medical evidence and applicant's credible testimony support entitlement to temporary disability benefits after retirement.

From the decision · page 4Applicant was on modified duty, but he was told he was unable to work at all. His retirement was a function of his industrial injury, and not a result of any intention not to work. Further, in contrast to the evidentiary record in Sera, the present case establishes that applicant was medically unable to work, or look for work, immediately after his retirement. Dr. Walter, the Panel Qualified Medical Evaluator (PQME), indicated in his April 11, 2024 report that applicant was temporarily totally disabled (TTD) from July 14, 2023 forward, so medical expert opinion supports applicant's TTD status. Accordingly, we deny the Petition for Reconsideration of the findings and award of temporary disability.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant retired in December 2023 because he was forced out and there was no light duty work available.

Favours Applicant prevailed

This fact supports that retirement was due to industrial injury, not voluntary withdrawal from labor market, favoring applicant's entitlement to temporary disability.

From the decision · page 3He retired in December 2023. He was forced into retirement. He was not ready to retire. He was told that they didn't have any light duty for him. When he was injured years ago, he was given light duty. The light duty involved answering telephones. He would have worked light duty if the employer had offered him light duty. He once again stated he retired in December 2023 because he was running out of time and because he was forced out. No one at Keenan & Associates discussed with him temporary disability. The only disability he got was from the policy he paid for. If he had been receiving temporary disability benefits, he would not have retired. He would have tried to return to work after recovering from his injury. After he retired, his source of income has been retirement through Cal PERS and Social Security. He did receive one payment from American Fidelity Assurance Company. He does not know when he got the check. American Fidelity Assurance has indicated they paid him too much and they want some money back. He did not find any work after he retired. (Minutes of Hearing and Summary of Evidence, August 6, 2025, p. 5, lines 5-15.)

Applicant credibly testified he would have worked light duty if offered and intended to return to work after recovery.

Favours Applicant prevailed

Supports applicant's willingness to work and entitlement to temporary disability benefits post-retirement.

From the decision · page 9available for him to do. He was told there was no light duty." (Minutes of Hearing and Summary of Evidence Page 6, lines 19-21). There is nothing in evidence to refute this testimony. As such, per Gonzales v. WCAB, applicant's retirement does not preclude his entitlement to temporary disability. Applicant's testimony that he asked if there was light duty available while his claim was denied, that he would have worked if modified duty was offered, and that he would have tried to return to work after recovering from his injury proves by a preponderance of the evidence that he did not remove himself from all employment, that he was unwilling to work, and intended to pursue work after his convalescence from his industrial injury.

Medical opinion from Dr. Walter that applicant was temporarily totally disabled from July 14, 2023 forward.

Favours Applicant prevailed

Supports the finding of temporary total disability and entitlement to benefits.

From the decision · page 4Applicant was on modified duty, but he was told he was unable to work at all. His retirement was a function of his industrial injury, and not a result of any intention not to work. Further, in contrast to the evidentiary record in Sera, the present case establishes that applicant was medically unable to work, or look for work, immediately after his retirement. Dr. Walter, the Panel Qualified Medical Evaluator (PQME), indicated in his April 11, 2024 report that applicant was temporarily totally disabled (TTD) from July 14, 2023 forward, so medical expert opinion supports applicant's TTD status. Accordingly, we deny the Petition for Reconsideration of the findings and award of temporary disability.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Berkshire Hathaway Homestate Companies v. WCAB (2021) 86 CCC 997

The relevant standard for employer liability for temporary disability is whether the injured worker has access to modified duty, not the employer's ability to provide it.

Applicant's entitlement to temporary disability is not negated by employer's inability to offer modified duty after retirement.

From the decision · page 10Cal. Walls, Inc. (2020) 85 CCC 1043. "... the relevant standard in determining whether an employer is liable for TD in cases such as this is whether the injured worker has access to modified duty, without consideration of the employer's ability to provide such duty." Berkshire Hathaway Homestate Companies v. WCAB (2021) 86 CCC 997. "Similarly, an employer's inability to accommodate a temporarily disabled employee's work restrictions does not release it from its obligation to pay temporary disability benefits. 'Labor Code section 3202

Gonzales v. WCAB (1998) 63 CCC 1477

An injured worker who retires due to a job-related injury and intends to pursue other work is entitled to temporary disability benefits.

Applicant's retirement was a function of his industrial injury and he intended to pursue other work, supporting entitlement to temporary disability benefits.

Retirement does not automatically preclude entitlement to temporary disability benefits if the worker intends to continue working elsewhere.

Applicant's case distinguished from Sera by evidence showing intent to return to work and medical inability to work after retirement.

Dennis v. State of California (2020) 85 CCC 389 (en banc)

An employer's inability to offer modified or alternative work does not relieve it from paying temporary disability benefits.

Defendant's inability to offer modified work due to applicant's retirement does not preclude temporary disability liability.

From the decision · page 10In Dennis v. State of California (2020) 85 CCC 389 (en banc), the WCAB held that "an employer's inability to offer regular, modified, or alternative work does not release an employer from the statutory obligation to provide a SJDB voucher." It did not matter that "inmate workers cannot return to an inmate job once they are released from prison, making it impossible for a prison employer to make a bona fide job offer." Dennis v. State of California (2020) 85 CCC 389 (en banc). This same reasoning has subsequently been applied to temporary disability where an employer could not offer or continue to offer modified duty to an injured worker because of reasons outside the employer's control. During the COVID-19 shutdown, employers were not relieved from paying temporary disability benefits because the shutdown prevented them from offering modified duty. Berkshire Hathaway Homestate Companies v. WCAB (2021) 86 CCC 997; Corona v.

Corona v. Cal. Walls, Inc. (2020) 85 CCC 1043

Labor Code section 3202 requires courts to view the Workers' Compensation Act from the standpoint of the injured worker to secure maximum benefits.

Applicant is entitled to temporary disability benefits as the injured worker under Labor Code section 3202.

From the decision · page 11requires the courts to view the Workers' Compensation Act from the standpoint of the injured worker, with the objective of securing the maximum benefits to which he or she is entitled." Corona v. Cal. Walls, Inc. (2020) 85 CCC I 043. Once applicant established that his retirement did not preclude entitlement to temporary disability, Defendant's only way to avoid liability for temporary disability for periods where the Applicant had work restrictions before becoming permanent & stationary was to make a bona fide offer of modified or alternative work, which it did not do.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's credible testimony that he retired due to being forced out and lack of light duty work, and that he intended to return to work after recovery.

From the decision · page 3He retired in December 2023. He was forced into retirement. He was not ready to retire. He was told that they didn't have any light duty for him. When he was injured years ago, he was given light duty. The light duty involved answering telephones. He would have worked light duty if the employer had offered him light duty. He once again stated he retired in December 2023 because he was running out of time and because he was forced out. No one at Keenan & Associates discussed with him temporary disability. The only disability he got was from the policy he paid for. If he had been receiving temporary disability benefits, he would not have retired. He would have tried to return to work after recovering from his injury. After he retired, his source of income has been retirement through Cal PERS and Social Security. He did receive one payment from American Fidelity Assurance Company. He does not know when he got the check. American Fidelity Assurance has indicated they paid him too much and they want some money back. He did not find any work after he retired. (Minutes of Hearing and Summary of Evidence, August 6, 2025, p. 5, lines 5-15.)

Documentary evidencefavours Applicant prevailed

Lack of evidence from defendant to rebut applicant's testimony about unavailability of light duty work.

From the decision · page 9In the case at hand, Applicant was never offered modified duty after his injury, he never worked a period of modified duty, and he did not leave work while working modified duties. Applicant's unrebutted testimony is that "He would have worked light duty if the employer had offered him light duty... He would have tried to return to work after recovering from his injury." (Minutes of Hearing and Summary of Evidence Page 5, lines 7-11). Furthermore, Applicant testified "He asked his supervisors, on two occasions, if there was any light duty available for him to do. He was told there was no light duty." (Minutes of Hearing and Summary of Evidence Page 6, lines 19-21). Defendant provided no evidence to rebut this testimony.

ADJ18364465 · January 16, 2026

What the panel ordered

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The facts that decided it

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