ADJ9247606 · October 24, 2022

The WCJ and WCAB found injury to the right knee, right elbow, right shoulder, and left hip industrially caused, but no injury to the neck, back, or right hip, consistent with prior final decisions.

From the decision · page 1Applicant, who is representing herself, and defendant each seek reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award (and Orders) of August 11, 2022, wherein it was found that, while employed on November 26, 2013 as a Fire Investigator II, applicant sustained industrial injury to her right knee, right elbow and right shoulder, and left hip, but not to her neck, back or right hip. It was found that applicant's injury caused permanent disability of 7%, after apportionment to other factors. Additionally, the WCJ found, "The applicant sustained periods of temporary disability for treatment of the left hip subject to the 104 week cap on temporary disability in an amount to be adjusted by the parties with the WCAB reserving jurisdiction." Previously, in a Decision after Reconsideration of October 29, 2021, we1 affirmed the WCJ's finding (in a Findings and Award of August 5, 2021) that applicant "did not sustain injury to her neck, back, or right hip as a result of the incident on November 26, 2013." (Decision After Reconsideration of October 29, 202, Finding No. 3.)

Permanent disability was found to be 7% after apportionment, with a monetary award calculated accordingly.

From the decision · page 1Applicant, who is representing herself, and defendant each seek reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award (and Orders) of August 11, 2022, wherein it was found that, while employed on November 26, 2013 as a Fire Investigator II, applicant sustained industrial injury to her right knee, right elbow and right shoulder, and left hip, but not to her neck, back or right hip. It was found that applicant's injury caused permanent disability of 7%, after apportionment to other factors. Additionally, the WCJ found, "The applicant sustained periods of temporary disability for treatment of the left hip subject to the 104 week cap on temporary disability in an amount to be adjusted by the parties with the WCAB reserving jurisdiction." Previously, in a Decision after Reconsideration of October 29, 2021, we1 affirmed the WCJ's finding (in a Findings and Award of August 5, 2021) that applicant "did not sustain injury to her neck, back, or right hip as a result of the incident on November 26, 2013." (Decision After Reconsideration of October 29, 202, Finding No. 3.)

Temporary disability was not placed at issue in the proceedings or trial, so the award was removed on reconsideration.

From the decision · page 2With regard to defendant's Petition, we will grant reconsideration and amend the WCJ's decision to remove the finding that the injury caused temporary disability. As noted in our Opinion of October 29, 2021 (at p. 1) and in the WCJ's report, temporary disability was not placed at issue in these proceedings. Additionally, temporary disability was not placed at issue at the July 27, 2022 trial. (See Minutes of Hearing and Summary of Evidence of July 27, 2022 trial.)

Applicant did not seek writ of review of prior WCAB decision affirming no injury to neck and back, making that decision final.

Favours Defendant prevailed

This fact upheld the denial of injury to neck and back issues.

From the decision · page 1Applicant appears to contend that the WCJ erred in not finding industrial injury to the back and the neck. As noted above, we already affirmed a finding of no industrial injury to those body parts in our Opinion and Decision of October 21, 2021, and applicant did not seek judicial review of our decision, thereby rendering it final. Defendant contends that the WCJ erred in finding that

Temporary disability was not placed at issue in the proceedings or trial.

Favours Defendant prevailed

Supported the removal of the temporary disability award on reconsideration.

From the decision · page 2With regard to defendant's Petition, we will grant reconsideration and amend the WCJ's decision to remove the finding that the injury caused temporary disability. As noted in our Opinion of October 29, 2021 (at p. 1) and in the WCJ's report, temporary disability was not placed at issue in these proceedings. Additionally, temporary disability was not placed at issue at the July 27, 2022 trial. (See Minutes of Hearing and Summary of Evidence of July 27, 2022 trial.)

Found right shoulder industrially caused with apportionment; neck, back, and bilateral hips non-industrial.

From the decision · page 4This case was initially set for trial on June 22, 2016, the matter was continued to October 2016 because the applicant was recovering from surgery for her cervical spine. The case was continued then to January 10, 2017 so that the PQME could review additional records. The January 10, 2017 trial date was vacated for additional discovery and on March 17, 2017 the applicant was re- evaluated by PQME Payam Moazzaz. As a result of the re-evaluation Dr. Moazzaz found that the right shoulder was industrially caused, albeit with apportionment. He did not change his opinion that the neck, back and bilateral hips were non-industrial.

Evaluated left hip issues; report admitted into evidence at trial.

From the decision · page 5Thereafter further proceeding at the trial level were held. The defendants authorized and applicant attended an Independent Medical Exam with Dr. Michael Muldoon on July 6, 2022 to address the issues with the left hip. Dr. Muldoon issued his report which is filed under EAMS ID 92248066. The parties then attended the trial on July 27, 2022, admitting into evidence Dr. Muldoon's report as Applicant's exhibit EE and the Rebuttal of Dr. Bernicker MD as Applicant's FF. The case was submitted after testimony by the Applicant (MOH/SOE 7/27/2022 2:23-3:16). A new Findings & Award issued on August 11, 2022. It is from this Findings and Award that the parties filed their timely Petitions for Reconsideration.

California Labor Code

Labor Code section 3202.5

Applied to determine compensability of injury to body parts.

From the decision · page 1Applicant, who is representing herself, and defendant each seek reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award (and Orders) of August 11, 2022, wherein it was found that, while employed on November 26, 2013 as a Fire Investigator II, applicant sustained industrial injury to her right knee, right elbow and right shoulder, and left hip, but not to her neck, back or right hip. It was found that applicant's injury caused permanent disability of 7%, after apportionment to other factors. Additionally, the WCJ found, "The applicant sustained periods of temporary disability for treatment of the left hip subject to the 104 week cap on temporary disability in an amount to be adjusted by the parties with the WCAB reserving jurisdiction." Previously, in a Decision after Reconsideration of October 29, 2021, we1 affirmed the WCJ's finding (in a Findings and Award of August 5, 2021) that applicant "did not sustain injury to her neck, back, or right hip as a result of the incident on November 26, 2013." (Decision After Reconsideration of October 29, 202, Finding No. 3.)

California Labor Code

Labor Code section 4656

Applied to determine eligibility and award of temporary disability benefits.

From the decision · page 2With regard to defendant's Petition, we will grant reconsideration and amend the WCJ's decision to remove the finding that the injury caused temporary disability. As noted in our Opinion of October 29, 2021 (at p. 1) and in the WCJ's report, temporary disability was not placed at issue in these proceedings. Additionally, temporary disability was not placed at issue at the July 27, 2022 trial. (See Minutes of Hearing and Summary of Evidence of July 27, 2022 trial.)

California Labor Code

Labor Code section 4660

Applied to determine permanent disability rating and apportionment.

From the decision · page 1Applicant, who is representing herself, and defendant each seek reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award (and Orders) of August 11, 2022, wherein it was found that, while employed on November 26, 2013 as a Fire Investigator II, applicant sustained industrial injury to her right knee, right elbow and right shoulder, and left hip, but not to her neck, back or right hip. It was found that applicant's injury caused permanent disability of 7%, after apportionment to other factors. Additionally, the WCJ found, "The applicant sustained periods of temporary disability for treatment of the left hip subject to the 104 week cap on temporary disability in an amount to be adjusted by the parties with the WCAB reserving jurisdiction." Previously, in a Decision after Reconsideration of October 29, 2021, we1 affirmed the WCJ's finding (in a Findings and Award of August 5, 2021) that applicant "did not sustain injury to her neck, back, or right hip as a result of the incident on November 26, 2013." (Decision After Reconsideration of October 29, 202, Finding No. 3.)

Applicant did not seek writ of review of prior WCAB decision affirming no injury to neck and back, making that decision final.

From the decision · page 1Applicant appears to contend that the WCJ erred in not finding industrial injury to the back and the neck. As noted above, we already affirmed a finding of no industrial injury to those body parts in our Opinion and Decision of October 21, 2021, and applicant did not seek judicial review of our decision, thereby rendering it final. Defendant contends that the WCJ erred in finding that

Temporary disability was not placed at issue in the proceedings or trial, supporting removal of the award.

From the decision · page 2With regard to defendant's Petition, we will grant reconsideration and amend the WCJ's decision to remove the finding that the injury caused temporary disability. As noted in our Opinion of October 29, 2021 (at p. 1) and in the WCJ's report, temporary disability was not placed at issue in these proceedings. Additionally, temporary disability was not placed at issue at the July 27, 2022 trial. (See Minutes of Hearing and Summary of Evidence of July 27, 2022 trial.)