What the panel ordered
Petition for Reconsideration denied, affirming the WCJ's findings and order.
Defendant sought reconsideration of the Amended Joint Findings and Award and Order issued by the WCJ on March 25, 2022, which found injury claims in two cases were subsumed into a cumulative injury claim, awarded 73% permanent disability, and denied defendant's request for credit for temporary disability overpayment.
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 WCJ's impairment rating of 73% permanent disability was supported by substantial medical evidence, including Dr. Hatch's detailed report and Almaraz/Guzman analysis. The defendant's request for credit for temporary disability overpayment was denied due to lack of a proper petition for credit and equitable considerations, as the overpayment was due to the defendant's error and crediting it would deprive the applicant of disability indemnity.
From the decision · page 1Defendant seeks reconsideration of the Amended Joint Findings and Award and Order issued by the workers' compensation administrative law judge (WCJ) on March 25, 2022, wherein the WCJ found in pertinent part the injury claims in case number ADJ10596376 and case number ADJ11367370 were subsumed into the cumulative injury claim in case number ADJ10595392, that the injury in case number ADJ10595392 caused 73% permanent disability, and that defendant's request for credit for the claimed temporary disability indemnity overpayment was denied.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Hatch's impairment rating report was admitted into evidence and found substantial medical evidence supporting 73% permanent disability.
Favours Applicant prevailed
This supported the WCJ's finding of 73% permanent disability in the cumulative injury claim.
From the decision · page 4Based upon the above discussion, it was found that applicant did act with due diligence, was not aware of the DEU Consultative Rating prior to service after the Mandatory Settlement Conference on January 4, 2021, and thus this evidence was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. The Report of IME Laura Hatch, M.D., dated 4/7/2021, was marked for identification only, and later admitted into evidence as Court's Exhibit A.
Defendant did not file a Petition for Credit for the claimed temporary disability overpayment as required by regulation.
Favours Applicant prevailed
Lack of proper petition led to denial of credit for overpayment.
From the decision · page 12It is noted that there is no Petition for Credit is in evidence. Further, CCR 10555 mandates a petition for credit sought under LC 4909.
Defendant's overpayments of temporary disability benefits were due exclusively to its own error, and allowing credit would deprive the applicant of disability indemnity.
Favours Applicant prevailed
Equitable considerations led to denial of credit for overpayment to protect applicant's benefits.
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.
Dr. Hatch provided a detailed impairment rating deviating from strict AMA Guides using Almaraz/Guzman analysis, supporting a 73% permanent disability rating for shoulder, lumbar spine, and right ankle injuries.
Her report was admitted into evidence and found substantial medical evidence supporting the permanent disability rating.
From the decision · page 1Defendant contends that the April 7, 2021 report from Laura Hatch, M.D., should not be admitted into evidence, that Dr. Hatch improperly rated applicant's shoulder impairment, and that defendant should be given credit for a temporary disability indemnity overpayment.
Dr. Kharazzi continued treating the applicant's shoulder and considered the applicant temporarily totally disabled after Dr. Hatch's MMI report, indicating ongoing treatment and disability status.
His reports showed ongoing treatment and TTD status, relevant to the dispute over credit for temporary disability overpayment.
From the decision · page 10IME Hatch found the applicant at maximum medical improvement on November 16, 2016, as written in her evaluative report of the same date. (Id. pg. 19.) This report included permanent work restrictions regarding the right shoulder, lumbar spine, and right ankle. (Id. pg. 20.) Dr. Hatch's report was served on the applicant's attorney and defendant's third-party administrator on December 13, 2016, pursuant to the attached proof of service at the end of the report. However, the applicant's Primary Treating Physician, Dr. Daniel Kharazzi, continued to treat the applicant's shoulder and considered his work status as TTD pursuant to Court's J L; with the Kharazzi report of 10/17/2018(Court's I) indicating that applicant was "currently retired."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Code of Regulations Section 10555
Credit for overpayments of benefits must be claimed by petition including description of payments, benefits, and amount claimed.
Defendant did not file a Petition for Credit as required, so credit was denied.
From the decision · page 12It is noted that there is no Petition for Credit is in evidence. Further, CCR 10555 mandates a petition for credit sought under LC 4909.
Labor Code Section 4062
Employer must object in writing within 20 days to medical determinations of temporary total disability by treating physician or lose right to object.
Defendant did not object timely to Dr. Kharazzi's reports, losing the right to object to TTD determinations.
From the decision · page 13In one case, the rationale of the denial of credit turns on public policy manifest in section 4062. The statute provides, in pertinent part, "If [the] employer objects to a medical determination made by the treating physician concerning any medical issues..., the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney.... These time limits may be extended for good cause or by mutual agreement." (§ 4062, subd. (a).)
Almaraz v. Environmental Recovery Services / Guzman v. Milpitas United School District (2009) 74 Cal. Comp. Cases 1084 (en banc)
AMA Guides impairment ratings can be rebutted by detailed explanation and alternative rating under Almaraz/Guzman analysis.
Dr. Hatch's report provided a detailed Almaraz/Guzman analysis supporting deviation from strict AMA Guides rating.
From the decision · page 4Dr. Hatch's report goes into great detail why she deviated from the strict AMA guides impairment. Moreover, case law does not require that the doctor provide explanations on why more objective measurements were not performed
What proof carried it
The evidence the panel weighed, by kind.
Lack of a Petition for Credit for temporary disability overpayment by defendant
From the decision · page 12It is noted that there is no Petition for Credit is in evidence. Further, CCR 10555 mandates a petition for credit sought under LC 4909.
Dr. Hatch's detailed impairment report and Almaraz/Guzman analysis
From the decision · page 4Based upon the above discussion, it was found that applicant did act with due diligence, was not aware of the DEU Consultative Rating prior to service after the Mandatory Settlement Conference on January 4, 2021, and thus this evidence was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference. The Report of IME Laura Hatch, M.D., dated 4/7/2021, was marked for identification only, and later admitted into evidence as Court's Exhibit A.
Defendant's overpayments of temporary disability benefits were due exclusively to its own error
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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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