ADJ11287164 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied, affirming the WCJ's findings and awards.

Defendant seeks reconsideration of the Joint Findings of Fact & Awards issued by the WCJ on June 11, 2021, which found injury to applicant's teeth, reasonable medical treatment by lien claimant Mayer Schames, D.D.S., temporary total disability from April 30, 2018, to April 28, 2019, and that the EDD lien was not barred by Labor Code section 4903.5 limitations period.

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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.

LiensApplicant prevailed

The WCJ and WCAB found that the EDD lien was timely filed, defendant had notice, and the lien was not barred by the statute of limitations. Defendant agreed to hold applicant harmless for the lien in the Compromise and Release.

AOE/COEApplicant prevailedteeth

The WCJ and WCAB found substantial evidence that applicant's bruxism and teeth injury were industrially related and that the treatment by Dr. Schames was reasonable and necessary.

Temporary disability

The facts that decided it

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

Applicant's bruxism and myofascial pain were caused or contributed to by industrial pain and emotional stressors related to the industrial injury.

Favours Applicant prevailed

This supported the finding that injury to teeth was industrial and treatment was reasonable.

Defendant received timely notice of the EDD lien and agreed to hold applicant harmless for the lien in the Compromise and Release.

Favours Applicant prevailed

This supported the finding that the EDD lien was not barred by the statute of limitations.

From the decision · page 7[W]here the Defendant had notice that there is a lien against compensation by the Employment Development Department, it becomes a constructively filed lien as of the date of the Defendant's knowledge.... In this case, the Employment Development Department served its request for workers' compensation information dated June 1, 2018, [Lien Claimant's Exhibit "13"] as well as its notice of lien claim dated June 22, 2018, [Lien Claimant's Exhibit "14"] notifying the Defendant that state disability insurance benefits were being paid to the Applicant. However, there was no evidence that the Defendant ever responded to the notification or took any action to investigate it. In addition, pursuant to the compromise and release agreement dated December 11, 2019, the Defendant agreed to hold the Applicant harmless with respect to the lien of the Employment Development Department (page nine) and addressed it in its attached lien affidavit, thereby having actual notice of the lien at that time as well. Accordingly, the lien of the Employment Development Department cannot be deemed to be time-barred pursuant to Labor Code § 4903.5(a). (Report, pp. 3 § 4.)

Substantial medical evidence showed applicant was temporarily disabled during the period EDD paid benefits.

Favours Applicant prevailed

This supported the finding that applicant was entitled to temporary disability benefits during that period.

From the decision · page 8The EDD paid benefits to applicant during the period from April 30, 2018, to April 24, 2019. (L.C. Exh. 12.) The exhibits indicating that applicant was temporarily disabled during that period are EDD Physician/Practitioner's Certificates prepared and submitted by Dr. Aun. (See L.C. Exhs. 15 § 21.) Each of the exhibits states that applicant was temporarily disabled at the time the Certificate was submitted. Also, QME Dr. Johnson stated that on August 7, 2018, applicant's condition was not permanent and stationary and that it had reached permanent and stationary status as of May 6, 2019. (See L.C. Exhs. 10 and 11.) The EDD's exhibits are substantial evidence that applicant was temporarily disabled during the period that it paid 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.

PTPRelied upon · Dentistry

Applicant's bruxism and myofascial pain of the facial musculature were caused or contributed to by industrial pain and emotional stressors related to the industrial injury.

Dr. Schames provided objective clinical findings and explained the industrial relation of bruxism and pain.

QMERelied upon · Dentistry

Applicant's bruxism was due to pain, stress, and medication resulting from the primary industrial injury and should be treated on an industrial basis.

Dr. Miller reviewed medical records and applicant's interview, concluding the bruxism was industrially related.

From the decision · page 3Dentistry QME, Jeffrey T. Miller, D.D.S., evaluated applicant on June 12, 2019. (L.C. Exh. 9, Dr. Miller, July 2, 2019.) Dr. Miller examined applicant, took a history and reviewed the medical/dental record. The diagnoses included myalgia (muscle pain) and bruxism. (L.C. Exh. 9, p. 6.) Regarding bruxism, Dr. Miller explained:

QMERelied upon · Chiropractic

Applicant's condition was not permanent and stationary as of August 7, 2018, but was permanent and stationary as of May 6, 2019. He apportioned 85% of permanent disability to non-industrial factors, but this was irrelevant to temporary disability status.

Dr. Johnson's reports provided evidence of temporary disability during the EDD benefit period.

From the decision · page 2On August 7, 2018, applicant was evaluated by chiropractic qualified medical examiner (QME) Mark S. Johnson, D.C. (L.C. Exh. 10, Dr. Johnson, August 10, 2018.) Dr. Johnson found that applicant's condition was not permanent and stationary at that time. (L.C. Exh. 10, p. 16.)

PTPRelied upon · Chiropractic

Applicant was temporarily disabled during the period from April 30, 2018, through April 24, 2019, supported by Physician/Practitioner's Certificates submitted to EDD.

Dr. Aun was applicant's primary treating physician and provided certificates indicating temporary disability during the EDD benefit period.

From the decision · page 2Applicant was treated by Bryan Aun, D.C., from May 11, 2018, to April 24, 2019. (See L.C. Exhs. 15 § 21, EDD Physician/Practitioner's Certificates.) Dr. Aun's August 22, 2018 progress report, indicated that applicant required an examination with Mayer Schames, D.D.S., to prove or disprove a contested claim of injury to his teeth. Dr. Aun stated:

The rules the panel named

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

Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204

A lien claimant has the burden of proving by a preponderance of the evidence that the claim is industrial.

Applied to the lien claimant's burden to prove injury AOE/COE.

From the decision · page 4Absent stipulations regarding the alleged injury and the injured body parts, a lien claimant must prove that applicant sustained an injury arising out of and occurring in the course of employment (AOE/COE). "A lien claimant... has the burden of proving by a preponderance of the evidence that the claim is industrial...." (Hand Rehabilitation Center v. Workers' Comp. Appeals Bd. (Obernier) (1995) 34 Cal.App.4th 1204, 1212-1213 [60 Cal.Comp.Cases 289, 291-292]; Tito Torres v AJC Sandblasting and Zurich North America (2012) 77 Cal.Comp.Cases 1113 (Appeals Board en banc).) Here, defendant denied both claims of injury to applicant's teeth so the lien claimants must first prove that applicant sustained an injury AOE/COE.

Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372

The Appeals Board may rely on the medical opinion of a single physician unless it is based on surmise, speculation, conjecture, or guess.

Applied to the reliance on Dr. Schames' medical opinion on treatment reasonableness.

From the decision · page 5In the Report, the WCJ reviewed Dr. Schames' explanation as to why the treatment he provided applicant was reasonable and appropriate. (See Report pp. 5 § 7.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence and the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137 [46 Cal.Comp.Cases 913.) Having reviewed the entire record, we agree with the WCJ that Dr. Schames explained why the treatment he provided applicant was reasonably required to cure or relieve applicant from the effects of his injury. ((Lab. Code, § 4600(a).) Thus, DTC met its burden of proof on that issue.

Labor Code sections 4903.5, 4904, and 4905 govern the filing, notice, and approval of liens by the Employment Development Department.

Applied to the timeliness and entitlement of the EDD lien.

Butterball Turkey Co. v. Workers' Comp. Appeals Bd. (Esquivel) (1999) 65 Cal.Comp.Cases 61

Defendant has the burden of proving termination for cause to deny temporary disability benefits.

Applied to defendant's burden to prove termination for cause.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Credibility of Dr. Schames' medical opinion on treatment reasonableness was favored by the applicant.

From the decision · page 5In the Report, the WCJ reviewed Dr. Schames' explanation as to why the treatment he provided applicant was reasonable and appropriate. (See Report pp. 5 § 7.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence and the Appeals Board may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525]; Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137 [46 Cal.Comp.Cases 913.) Having reviewed the entire record, we agree with the WCJ that Dr. Schames explained why the treatment he provided applicant was reasonably required to cure or relieve applicant from the effects of his injury. ((Lab. Code, § 4600(a).) Thus, DTC met its burden of proof on that issue.

Documentary evidencefavours Applicant prevailed

Defendant's failure to respond or object to EDD lien notice favored the applicant's position on lien timeliness.

From the decision · page 7[W]here the Defendant had notice that there is a lien against compensation by the Employment Development Department, it becomes a constructively filed lien as of the date of the Defendant's knowledge.... In this case, the Employment Development Department served its request for workers' compensation information dated June 1, 2018, [Lien Claimant's Exhibit "13"] as well as its notice of lien claim dated June 22, 2018, [Lien Claimant's Exhibit "14"] notifying the Defendant that state disability insurance benefits were being paid to the Applicant. However, there was no evidence that the Defendant ever responded to the notification or took any action to investigate it. In addition, pursuant to the compromise and release agreement dated December 11, 2019, the Defendant agreed to hold the Applicant harmless with respect to the lien of the Employment Development Department (page nine) and addressed it in its attached lien affidavit, thereby having actual notice of the lien at that time as well. Accordingly, the lien of the Employment Development Department cannot be deemed to be time-barred pursuant to Labor Code § 4903.5(a). (Report, pp. 3 § 4.)

Medical recordsfavours Applicant prevailed

Substantial medical evidence from Dr. Aun and QME Dr. Johnson favored applicant's temporary disability status during EDD benefit period.

From the decision · page 8The EDD paid benefits to applicant during the period from April 30, 2018, to April 24, 2019. (L.C. Exh. 12.) The exhibits indicating that applicant was temporarily disabled during that period are EDD Physician/Practitioner's Certificates prepared and submitted by Dr. Aun. (See L.C. Exhs. 15 § 21.) Each of the exhibits states that applicant was temporarily disabled at the time the Certificate was submitted. Also, QME Dr. Johnson stated that on August 7, 2018, applicant's condition was not permanent and stationary and that it had reached permanent and stationary status as of May 6, 2019. (See L.C. Exhs. 10 and 11.) The EDD's exhibits are substantial evidence that applicant was temporarily disabled during the period that it paid benefits.

ADJ11287164 · August 12, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

What proof carried it

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