ADJ10725201 — California WCAB decision

What the panel ordered

The WCAB panel denied the defendant's Petition for Reconsideration and upheld the Findings and Award of the WCJ.

Defendant filed a Petition for Reconsideration of the Findings and Award issued by the WCJ on January 28, 2021, which was denied by the WCAB panel on April 1, 2021.

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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.

AOE/COEApplicant prevailedthoracolumbar spine · right shoulder · right elbow · right forearm/upper extremity · right wrist/hand · both knees

The WCJ found applicant sustained injury AOE/COE to multiple body parts based on credible testimony and substantial medical evidence, including QME Dr. Geiger's reports and deposition.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on January 28, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her thoracolumbar spine, right shoulder, right elbow, right forearm/upper extremity in the form of radial tunnel syndrome, right wrist/hand in the form of carpal tunnel syndrome, and both knees; that applicant did not sustain injury to her left elbow; that applicant was temporarily totally disabled for the period from December 1, 2016, through February 9, 2018; that the injury caused 31% permanent disability; that applicant will require further medical treatment to cure or relieve from the effects of her injury; and that defendant unreasonably failed to pay temporary disability and permanent disability benefits, entitling applicant to a penalty on both benefits, pursuant to Labor Code section 5814.

The facts that decided it

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

Applicant sustained injury arising out of and in the course of employment to multiple body parts as found by the WCJ based on credible testimony and medical evidence.

Favours Applicant prevailed

This fact supported the finding of compensable injury and permanent disability.

From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on January 28, 2021, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) to her thoracolumbar spine, right shoulder, right elbow, right forearm/upper extremity in the form of radial tunnel syndrome, right wrist/hand in the form of carpal tunnel syndrome, and both knees; that applicant did not sustain injury to her left elbow; that applicant was temporarily totally disabled for the period from December 1, 2016, through February 9, 2018; that the injury caused 31% permanent disability; that applicant will require further medical treatment to cure or relieve from the effects of her injury; and that defendant unreasonably failed to pay temporary disability and permanent disability benefits, entitling applicant to a penalty on both benefits, pursuant to Labor Code section 5814.

Applicant was temporarily totally disabled from December 1, 2016, through February 9, 2018, supported by medical reports and employer instructions.

Favours Applicant prevailed

This fact supported the award of temporary disability benefits.

From the decision · page 5[T]he court's finding of temporary total disability from December 1, 2016 through February 9, 2018 is supported by the emergency room report dated November 30, 2016 taking her off of work; her employer's instruction a couple of weeks later to go home and not return until she was fully recovered; and ongoing medical reports from Dr. Valencia and Dr. Komberg declaring applicant temporarily totally disabled throughout 2017. (Report, p. 13.)

Defendant failed to pay temporary and permanent disability benefits despite no evidence of genuine medical or legal doubt regarding liability.

Favours Applicant prevailed

This fact supported the imposition of penalties under Labor Code section 5814.

From the decision · page 6medical evidence otherwise.... Defendant offered no evidence that would rebut applicant's claim to temporary total disability benefits. Similarly, the only P&S reports in the record, from Dr. Rad and Panel QME Dr. Geiger, indicate that applicant has permanent disability.... Nevertheless, defendant paid no temporary or permanent disability benefits at all, per their stipulation at trial. Defendant offered no evidence and no explanation for their failure to do so. The record contains no evidence of genuine medical or legal doubt regarding defendant's liability for benefits. (Opinion on Decision, p. 3.) The WCJ is correct that defendant submitted no evidence indicating that applicant was not temporarily totally disabled for the period that benefits were awarded, nor did it submit evidence that applicant's accepted injury did not cause permanent disability.

The rules the panel named

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

Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399

An award must be supported by substantial evidence, including medical opinions framed in reasonable medical probability and based on adequate examination and history.

The WCJ found Dr. Geiger's opinions constituted substantial evidence supporting injury and disability findings.

From the decision · page 3It has long been the law that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) In order to constitute substantial evidence, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Granado v. Workmen's Comp. Appeals Bd. (1970) 69 Cal.2d 399 [33 Cal.Comp.Cases 647]; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

Kenley v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 223

The standard for penalties under Labor Code section 5814 is the existence of genuine medical or legal doubt regarding liability for benefits.

The WCJ found no genuine medical or legal doubt and imposed penalties for failure to pay benefits.

From the decision · page 5Finally, defendant objects to the penalties imposed by the WCJ. In his Report, the WCJ correctly stated that a defendant is required to take the initiative to provide the benefits to which an injured worker is entitled (Dorman v. Workmen's Comp. Appeals Bd. (1978) 78 Cal.App.3d 1009 [43 Cal.Comp.Cases 302]), and that the standard for determining if there has been an unreasonable delay or denial of benefits is the existence of a genuine medical or legal doubt as to the defendant's liability for benefits. (Lab. Code, § 5814; Kenley v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 223 [36 Cal.Comp.Cases 152].)

ADJ10725201 · April 1, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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