ADJ12459250 — California WCAB decision

ADJ12459250 · April 26, 2024

The WCAB affirmed the WCJ's Findings & Order except it amended the order to find the applicant entitled to temporary disability benefits from October 18, 2018, up to 104 weeks, with credit to defendant for amounts paid.

Issues decided

Medical opinions weighed

Authorities named

District office

Santa Rosa

What the panel ordered

Applicant sought reconsideration of the WCJ's Findings & Order issued on October 10, 2022, which denied temporary disability benefits after November 1, 2018. The WCAB granted reconsideration to further study the issues and issued this decision after reconsideration.

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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.

Temporary disabilityApplicant prevailedright shoulder · right elbow

Applicant was found entitled to temporary disability benefits from the date of injury through the date of the QME evaluation, as defendant failed to prove termination for cause and applicant's testimony and QME report supported ongoing disability.

From the decision · page 3The parties proceeded to trial on August 3, 2022. The issues submitted for decision were: "1. Temporary disability: Employee claiming the following period: From October 29, 2018 through 104 weeks. 2. Permanent and stationary date: Employee claims not applicable based on the PQME; employer/carrier claims September 14, 2020 based on Dr. Andolsen. 3. Applicant alleges penalties and TTD Failure to pay anything after the QME. 4. Defendant alleges applicant is a seasonal and temporary employee from August through November." (Minutes of Hearing and Summary of Evidence (MOH/SOE), 8/3/22, 3:3-3:14.)

The facts that decided it

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

Applicant was hired with the understanding that the job could become permanent and intended to work full time.

Favours Applicant prevailed

Supported applicant's claim that she was not a temporary/seasonal worker and entitled to temporary disability benefits.

From the decision · page 3According to applicant, Maria from Ferrari Carano who spoke Spanish and English helped applicant fill out the application and spoke to applicant in Spanish and when she spoke to her in English applicant did not understand. (MOH/SOE, 5:47-6:4; 6:11-6:12.) She does not recall Maria saying that it [the position] was a temporary job, but that applicant could work year-round. (MOH/SOE, 6:6-6:7.) When she started working at Ferrari Carano, she intended to work full time and she understood that the job could turn into a permanent position and this was important to applicant. (MOH/SOE, 5:8-5:13.) She was hired as a seasonal worker with the possibility of working all year-round. (MOH/SOE, 7:4-7:8.) None of the people who were initially hired with applicant became a permanent employee. (MOH/SOE, 5:17-5:19.)

Defendant did not prove that applicant's employment was terminated for cause before her injury.

Favours Applicant prevailed

Defendant's failure to prove termination for cause meant applicant was entitled to temporary disability benefits.

From the decision · page 6Similar to the circumstance in Gamez, supra, here applicant completed the pre-injury documents with assistance from "Maria" because applicant does not speak English. When applicant started working at Ferrari Carano she intended to work full time, and she understood that she could work year round and that the position could turn into a permanent position, which was important to applicant. Moreover, there is no evidence that applicant was terminated for cause before her injury. According to her testimony, applicant was unaware of her employment status until she received the termination letter dated November 8, 2019. It is clear that defendant did not make applicant an offer of employment modified or otherwise after October 18, 2018, the date of her injury. Dr. Sclafani reported that applicant is entitled to temporary disability through the date of the QME exam which took place on July 10, 2021. Thus, we conclude that applicant is entitled to temporary disability through July 10, 2021.

Dr. Sclafani's QME report concluded applicant was entitled to temporary disability from October 18, 2018 through July 10, 2021.

Favours Applicant prevailed

Medical evidence supported ongoing entitlement to temporary disability benefits.

From the decision · page 3temporary disability should have been initiated on October 18, 2018 and continued through the date [July 10, 2021] of this QME evaluation." (Exhibit J9, p. 17.)

ADJ12459250 · April 26, 2024

What the panel ordered

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The facts that decided it

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