ADJ12300876 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; WCJ decision affirmed.

Petition for Reconsideration denied by WCAB panel after review of WCJ report and record.

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.

Permanent disability ratingApplicant prevailedthoracic spine · right shoulder

The WCJ's credibility determinations and weighing of medical evidence, including QME and treating physician reports, were accorded great weight and supported the award of permanent disability to thoracic spine and right shoulder. The Board affirmed the WCJ's decision, rejecting defendant's challenge to the causation and impairment ratings.

From the decision · page 2Following our review of the entire record occasioned by defendant's Petition, we agree with the WCJ's determination that the evidentiary record supports the award of disability to the thoracic spine and right shoulder, and further agree with the WCJ's decision to award permanent disability based in part on the opinions of the QME, and in part on the opinions of applicant's treating physician. We affirm the decision of the WCJ, accordingly.

The facts that decided it

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.

QMERelied upon

Found applicant maximally improved with residual impairment; concluded permanent and stationary status as of June 29, 2020; acknowledged that return to work was problematic and that medical treatment was palliative; concluded applicant unable to return to usual job duties.

QME's reports were relied upon in part for permanent disability award and causation analysis.

From the decision · page 5The parties engaged a qualified medical evaluator (QME), Dr. James Shaw, whose first report is dated March 9, 2020. There, he recounts the relevant history, describes his findings on examination, and concludes that further treatment and medical discovery would be needed before applicant's condition could be said to have stabilized. (Exh. D)

PTPRelied upon

Provided permanent impairment ratings for thoracic spine and right shoulder; apportioned 90% of impairment to industrial injury and 10% to non-industrial issues; findings supported by applicant's credible testimony.

Treating physician's impairment ratings were incorporated with QME's ratings and supported by credible testimony.

From the decision · page 5For approximately the last three and one-half years, applicant's primary treating physician has been Dr. Matthew Johnson, who has prescribed chiropractic, physical therapy, acupuncture, and medications. The first report by Dr. Johnson in evidence is dated December 10, 2019. Since then, the applicant has reported some improvement, but ongoing problems. She was taken off work before her surgery in 2019 and has not returned [to her regular job].

PTPGiven great weight · orthopedist

Released applicant to return to work on June 29, 2020, after surgical decompression of right carpal tunnel; release considered narrow and did not address overall condition or subjective complaints.

Release to return to work date was discussed in relation to permanent and stationary status but not endorsed as final by QME or Board.

From the decision · page 5The next QME report is dated October 7, 2020. (Exh. C) At this point, Dr. Shaw finds the applicant to be maximally improved from her injuries, with residual impairment. Significantly, he concludes that her condition had become permanent and stationary on June 29, 2020, a date when an earlier treating physician, Dr. Gregory Horner, had reportedly2 released her to return to work. (Dr. Horner had assumed the role of treating orthopedist after Dr. Sherwood retired.) Defendant did not end payments of temporary disability indemnity upon Dr. Horner's reporting, presumably because Dr. Johnson continued to report temporary (partial) disability status.

PTPGiven great weight · orthopedist

Performed left carpal tunnel release surgery in July 2019, which relieved numbness and tingling in left limb; applicant returned to modified work post-surgery.

From the decision · page 8Reportedly, the applicant began developing symptoms, primarily in her upper extremities, about a year before she reported a work-related injury in August, 2018. First, she saw her primary- care physician. After she reported the injury, she came under the care of doctors in her employer's provider network. She underwent a carpal tunnel release, on the left, by Dr. Richard Sherwood, in July, 2019, which afforded considerable relief of the numbness and tingling in that limb, and she returned to modified work. Symptoms in the right upper extremity, the neck, and the upper back continued.

The rules the panel named

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

Liberty Mutual Ins. Co. v. Industrial Acci. Com. (Serafin) (1948) 33 Cal.2d 89

The trier of fact may accept the evidence of any one expert or choose a figure between them based on all of the evidence.

Applied to weigh conflicting expert opinions and determine extent of disability.

From the decision · page 1It is well established that "[t]he trier of fact may accept the evidence of any one expert or choose a figure between them based on all of the evidence." (Liberty Mut. Ins. Co. v. Industrial Acci. Com. (Serafin) (1948) 33 Cal.2d 89, 93-94 [199 P.2d 302] (Serafin).) Moreover, "although it encourages the demonstration of the truth of the issues before a court by any means which are generally accepted as tending to prove the facts in dispute, `when there is a conflict between scientific testimony and testimony as to facts, the jury or trial court must determine the relative weight of the evidence.'" (Serafin, supra, at p. 94, quoting Rolland v. Porterfield, 183 Cal. 466 [191 P. 913], italics added.)

Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312

Credibility determinations by the WCJ are accorded great weight and rejected only on contrary evidence of considerable substantiality.

Applied to uphold WCJ's credibility findings and disability award.

From the decision · page 1Here, the WCJ has considered and weighed all of the evidence presented, and further had the opportunity to evaluate applicant's testimony in trial proceedings. We accord to the WCJ's credibility determinations the great weight to which they are entitled. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500] (Garza).) Based on that review, the WCJ has awarded disability to body parts/conditions that were identified by in part by the Qualified Medical Evaluator, and in part by the Primary Treating Physician.

California Indemnity Ins. Co. v. Workers' Comp. Appeals Bd. (Estrella) (2003) 68 Cal.Comp.Cases 233

Credit for overpaid temporary disability indemnity is discretionary and may be denied if equities disfavor depriving applicant of permanent disability indemnity; employer bears burden to establish credit.

Applied to deny defendant's claim for credit for overpaid temporary disability benefits.

From the decision · page 15Credit is commonly allowed, under section 49095, for overpaid temporary disability indemnity against the ultimate liability for permanent disability indemnity. See, e.g., Cordes v. General Dynamics-Astronautics (1966) 31 Cal.Comp.Cases 429 (board panel decision). This is discretionary, however, and may be denied if the equities disfavor depriving applicant of indemnity for his or her permanent disability. California Indemnity Ins. Co. v. Workers' Comp. Appeals Bd. (Estrella) (2003) 68 Cal.Comp.Cases 233 (writ denied). Factors to consider include the relative fault of the parties (id.; Chrysafides v. Royal Ins. Co. (1985) 13 Cal.Workers'Comp.Rptr. 191), and the significance of the overpayment (Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [45 Cal.Comp.Cases 1106] (credit for large overpayment disallowed where it would significantly disrupt flow of benefits, especially where fault lay with the employer)). Maples also emphasized the disparate purposes served by temporary versus permanent disability indemnity. It is generally the employer's burden to establish its right to credit. Section 5705.

ADJ12300876 · September 15, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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