What the panel treated as outcome-determinative, and which side it favoured.
PQME Dr. Antoine Roberts declared applicant MMI on March 12, 2020, finding no pain but significant loss of strength in left shoulder.
Favours Defendant prevailed
Supported denial of additional temporary disability benefits after this date.
From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of
Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was
performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and
examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised
that he should have surgery for replacement of his left shoulder with a reverse arthroplasty.
However, the applicant did not know what was involved and according to the history noted in the
March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the
surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3,
para 5-6). The report states that the applicant's only complaint was his inability to lift his arm
against gravity. Dr. Roberts concluded that the applicant should have future medical care for the
left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic
pain from the left shoulder, he should have the option to proceed with a reverse total shoulder
arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.)
He was declared MMI in that report of March 12, 2020.
Applicant declined reverse total shoulder arthroplasty surgery after being informed of risks and lack of pain.
Favours Defendant prevailed
Applicant's declination and lack of pain supported denial of continuing temporary disability.
From the decision · page 4The applicant first underwent left shoulder surgery on October 24, 2018 at the hands of
Dr. Paul Simic. He had left shoulder arthroscopic debridement and a Mumford procedure was
performed. (Joint Exhibit "L"). Thereafter on May 1, 2019, he was provided medical treatment and
examined by Dr. Michael Bahk, his designated primary treating physician. He was then advised
that he should have surgery for replacement of his left shoulder with a reverse arthroplasty.
However, the applicant did not know what was involved and according to the history noted in the
March 12, 2020, report from Dr. Antoine Roberts, PQME, decided he would not proceed with the
surgery because at that time as he was not having any shoulder pain. (Joint Exhibit "K", page 3,
para 5-6). The report states that the applicant's only complaint was his inability to lift his arm
against gravity. Dr. Roberts concluded that the applicant should have future medical care for the
left shoulder. He reported that, "if in the future the examinee should be encumbered with chronic
pain from the left shoulder, he should have the option to proceed with a reverse total shoulder
arthroplasty for relief of intractable pain in his left shoulder." (Joint Exhibit "K", page 25, para 6.)
He was declared MMI in that report of March 12, 2020.
IMR denied surgery as medically unnecessary, with no clear documentation of significant deficits.
Favours Defendant prevailed
Denial of surgery by IMR removed basis for continuing temporary disability.
Dr. Bahk's reports lacked explanation or work restrictions and were not substantial evidence of continuing temporary disability.
Favours Defendant prevailed
Weighed against applicant's claim for additional temporary disability.
From the decision · page 4At trial, the parties stipulated to the TD paid. The claimed overpayment was in dispute,
however, the WCJ found the overpayment valid based on the PQME report of Dr. Roberts who
declared him MMI on March 12, 2020. Applicant raised the issue of entitlement to additional
temporary disability from September 18, 2018 through January 31, 2019, and from August 5, 2019
to date and continuing. Applicant claimed that he was not yet MMI based on the reports of Dr.
Bahk. In their Petition for Reconsideration, applicant states that he should have been TD from at
least 7/22/20 to 3/29/21, when the IMR denied the surgery.
Dr. Roberts' permanent disability rating based on strength deficits and loss of function was unchallenged until appeal and found appropriate.
Favours Applicant prevailed
Supported applicant's claim for permanent disability rating.
From the decision · page 7Defendant's failed to object to the rating instructions issued by the WCJ on May 3, 2022, nor
did they make any effort to request cross examination of the rater. The issue raised their Petition
for Reconsideration is that the report of Dr. Roberts cannot use loss of strength as a factor of
impairment in the face of pain. Defendants argue that "pain at the level reported would prevent the
effective application of maximal force during strength testing." There is, however, no evidence to
support that fact, especially when the applicant reported to Dr. Roberts that he did not have pain.
However, Dr. Roberts did indicate that the applicant had suffered a massive non-repairable rotator
cuff tear in the left shoulder, accompanied by rotator cuff arthroplasty and rupture of the long head
of the biceps tendon. He said that there was weakness in the left shoulder to abduction, flexion,
internal and external rotation. (March 12, 2020, page 24, para 3).