Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5900-5903 grounds for Petition for Reconsideration
Petition for Reconsideration may be taken only from a final order, decision, or award on specified grounds
From the decision · page 4Under Labor Code section 5900(a), a Petition for Reconsideration may only be taken from a "final"
order, decision, or award. A "final" order has been defined as one that either "determines any
substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal. App.
3d 1171, 1180) or determines a threshold issue that is fundamental to the claim for benefits
(Maranian v. Workers' Comp. Appeal Bd. (2000) 81 Cal. App. 4th 1068, 1070.) Pursuant to Labor
Code section 5903, any person aggrieved by any final order, decision, or award may petition for
reconsideration upon one or more of the following grounds:
Gonzalez v. WCAB (1998) 63 Cal. Comp. Cases 1477
Gonzalez v. WCAB (1998) 63 Cal. Comp. Cases 1477 regarding temporary disability and retirement
If injury caused retirement for all purposes, worker is entitled to temporary disability
From the decision · page 6Determining whether an Applicant, who has retired from her employment, is entitled to temporary
disability indemnity requires a factual inquiry as to the Applicant's willingness to work. (Gonzalez
v. WCAB (1998) 63 Cal. Comp. Cases 1477.) If it was the Applicant's intention to retire from work
for all purposes, then it cannot be said that she is willing to work, and therefore her earning capacity
would be zero. (Ibid.) Alternatively, if the Applicant had intended to only retire from her particular
employment at the time, then she may be entitled to temporary disability indemnity. (Ibid.)
Labor Code section 5814
Labor Code section 5814 penalty for unreasonable delay or refusal to pay benefits
Penalty applies if benefits are unreasonably delayed or refused without good faith dispute
From the decision · page 9Simply listing temporary disability as an issue for Trial more than three years after Dr. Li certified
the Applicant as temporarily totally disabled cannot automatically eliminate any discussion as to
whether benefits were unreasonably delayed or refused, especially in light of the Petitioner's duties
under California Code of Regulations section 10109. Accordingly, the undersigned WCJ believes
that Petitioner's conduct arose to the level of unreasonableness as contemplated under Labor Code
section 5814 by failing to issue temporary disability indemnity and failing to provide any evidence
showing that it had delayed benefits because of some legal, medical, or factual basis that raised
genuine doubt as to its liability for the same.
City and County of San Francisco v. WCAB (Wiebe) (1978) 22 Cal.3d 103
Labor Code section 3212 hernia presumption and rebuttal requirements
Defendant must show contemporaneous nonindustrial sole cause to rebut hernia presumption
From the decision · page 5Whether Defendant Rebutted the Hernia Presumption under Labor Code section 3212
Valdez v. WCAB (2013) 57 Cal.4th 1231
Valdez v. WCAB (2013) 57 Cal.4th 1231 on primary treating physician designation
Privately retained doctor opinions cannot solely support award unless primary treating physician
From the decision · page 7Next Petitioner argues that even if the Applicant is entitled to temporary disability after retirement,
the court cannot rely upon the reporting from Dr. Jia Li, who certified the Applicant to be
temporarily totally disabled after a March 12, 2019 visit. (Applicant's Exhibit 15.) Specifically,
Petitioner contends that Dr. Li was never properly designated as the Applicant's primary treating
physician. Petitioner further suggests that the Applicant had privately retained Dr. Li, and that
opinions by a doctor privately obtained by the injured worker cannot be the sole basis of an Award
in accordance with Valdez v. WCAB (2013) 57 Cal.4th 1231, a holding also codified in Labor Code
section 4605. However, the record suggests that Dr. Li, or the facility he was associated with, was
in fact the Applicant's primary treating physician at least at the time of the March 12, 2019 visit,
and that the Applicant did not intend to privately retain Dr. Li's services of which she would pay
at her own expense.
California Code of Regulations section 9785 requirements for primary treating physician reports
Primary treating physician must use PR-2 form and manage care for injury
From the decision · page 7The identity of the primary treating physician is a question of fact. Most often the primary treating
physician can be easily identified with some type of writing, typically prepared by the Applicant
or through her counsel. However, in this case, the parties did not offer any such "4600 letter," and
the parties could not stipulate to the identity of the Applicant's primary treating physician.
However, Dr. Li held himself out as the Applicant's primary treating physician as to this
cumulative trauma injury, at least at the time of the March 12, 2019 report. The report itself is
titled "Primary Treating Physician's Progress Report (PR-2)," which is the required form that
primary treating physicians are mandated to use pursuant to California Code of Regulations section
9785(f)(8). (Applicant's Exhibit 15.) The report further memorializes that the treatment was for
Applicant's lumbar spine resulting from a cumulative trauma claimed through the present,
evidencing treatment for this particular injury. (Ibid.) Dr.