ADJ19327586 — California WCAB decision

ADJ19327586 · October 6, 2025

Petition for Reconsideration granted; Findings and Orders of July 7, 2025, affirmed in part and amended in part; case remanded for further proceedings on average weekly earnings, work restrictions, modified work offers, wage loss, and attorney fees.

Issues decided

Medical opinions weighed

Authorities named

District office

Santa Rosa

What the panel ordered

Applicant filed a Petition for Reconsideration of the Findings and Orders issued June 16, 2025, which denied temporary disability benefits and found applicant had not reached permanent and stationary status. The WCJ recommended denial of the Petition. The Appeals Board granted reconsideration, deferred issues of earnings, work restrictions, modified work, and wage loss for further proceedings, and otherwise affirmed the WCJ findings.

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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 disabilityRemandedlumbar spine · low back

The Appeals Board found the applicant was not permanent and stationary and that further proceedings were necessary to determine work restrictions, modified work offers, and wage loss. The Board was not convinced the modified work offered was within applicant's restrictions and deferred these issues for further proceedings.

From the decision · page 6Offer of Regular, Modified, or Alternative Work" form, (Form DWC-AD 10133.35). (Cal.Code.Reg., title 8, § 10133.36 and 10133.35.) Instead, the PQME found applicant temporarily and partially disabled on a medical basis from February 1, 2023, through the present. (Exhibit 3, PQME Dr. Newmark, October 15, 2024, page 12.)

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.

QMERelied upon

Applicant has not reached MMI/P&S status and has work restrictions including no repetitive lifting, pushing, or pulling over 10 lbs for more than 20 minutes per hour, avoiding bending and stooping, and allowing position changes.

The PQME report was relied upon to find applicant not permanent and stationary and to assess work restrictions relevant to temporary disability and modified work offers.

From the decision · page 4There is an October 15, 2024, Panel Qualified Medical Evaluation (PQME) report from Jordan Newmark, M.D., who provided work restrictions of no "repetitive lifting, pushing, and pulling of objects greater than 10 lbs for greater than 20 minutes per hour. Avoid bending and stooping with the lumbar spine. Allow changes in position from sitting to standing at will. The applicant should be provided with ergonomic equipment. The applicant should be allowed one 5- minute break per 75-minutes of work for rest and changing positions." The PQME also found "the applicant has not reached MMI / P&S status." "The applicant has been temporarily and partially disabled on a medical basis from 02/01/2023 as listed on the DFR [doctor's first report], through that of the present time." (Exhibit 3, PQME Dr. Newmark, October 15, 2024, page 12.) The report also provides a digest of treating records including from Dr. Michele Lee at Kaiser: March 1, 2024, "no lifting, carrying, pushing or pulling over 15 pounds"; April 11, 2024, "same restrictions"; May 22, 2024, "no lifting, carrying, pushing or pulling over 10 pounds"; and the July 2, 2024, "full duty without restrictions." (Exhibit 3, PQME Dr. Newmark, October 15, 2024, pages 9-10.) PQME Dr. Newmark explained:

PTPRejected

Returned applicant to full duty on July 2, 2024, with no limitations or restrictions, which was rejected by PQME Newmark.

The Board rejected Dr. Lee's opinion of full duty without restrictions in favor of PQME Newmark's more restrictive work limitations.

From the decision · page 4On July 2, 2024, Michelle Han Lee, M.D., with Kaiser Permanente, evaluated the applicant and issued a Primary Treating Physician's Progress Report (PR-2) stating applicant was returned to full duty on July 2, 2024, with no limitations or restrictions. (Exhibit A, page 5.)

PTPRelied upon

Provided work restrictions of no lifting, pulling, or pushing more than 10 pounds, no repetitive bending at the waist, and may alternate between sitting and standing as needed, not permanent and stationary.

The Board considered Dr. Zereshki's reports consistent with PQME Newmark's restrictions and relevant to the temporary disability analysis.

From the decision · page 8Subsequently, treating physician Dr. Zereshki reported applicant was restricted to no lifting, pulling, or pushing more than 10 pounds, no repetitive bending at the waist, and may alternate between sitting and standing as needed in reports dated January 17, 2025, and February 21, 2025. (Exhibit 6, PDF page 14, report page 8; Exhibit G, page 4.)

The rules the panel named

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

Dennis v. State of California (2020) 85 Cal.Comp.Cases 28, 43 (Appeals Board en banc)

An offer of regular, modified, or alternative work must be bona fide.

The Board applied this standard to assess whether the employer's offer of modified work was valid.

From the decision · page 6Temporary disability may be total (incapable of performing any kind of work) or partial (capable of performing some kind of work). (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App. 3d 856, 868 [44 Cal.Comp.Cases 798].) "If the partially disabled worker can perform some type of work but chooses not to, his "probable earning ability" will be used to compute wage- loss compensation for partial disability." "If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments." (Huston, supra, at 868.) Further, an offer of regular, modified, or alternative work must be bona fide. (Dennis v. State of California (2020) 85 Cal.Comp.Cases 28, 43 (Appeals Board en banc).)

Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App. 3d 856, 868 [44 Cal.Comp.Cases 798]

Temporary disability may be total or partial; if partially disabled worker can perform some work but chooses not to, wage loss is used to compute compensation; if no suitable work is offered, temporary total disability payments apply.

The Board applied this standard to analyze temporary disability and wage loss.

From the decision · page 6Temporary disability may be total (incapable of performing any kind of work) or partial (capable of performing some kind of work). (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal. App. 3d 856, 868 [44 Cal.Comp.Cases 798].) "If the partially disabled worker can perform some type of work but chooses not to, his "probable earning ability" will be used to compute wage- loss compensation for partial disability." "If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments." (Huston, supra, at 868.) Further, an offer of regular, modified, or alternative work must be bona fide. (Dennis v. State of California (2020) 85 Cal.Comp.Cases 28, 43 (Appeals Board en banc).)

Labor Code 4654, Labor Code 4657

Wage loss for temporary partial disability is calculated by subtracting wages earned during disability from average weekly wage and paying two-thirds of the difference.

The Board applied these statutes to explain the calculation of temporary partial disability benefits.

From the decision · page 10In cases of temporary partial disability, the disability payment is two-thirds of the wage loss during the disability. (Lab. Code, § 4654.) Wage loss is calculated by subtracting wages earned during the period of temporary partial disability from the employee's average weekly wage. (Lab. Code, § 4657.)

ADJ19327586 · October 6, 2025

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