ADJ12459250 · April 26, 2024

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.)

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.)

Applicant presented with persistent right elbow and shoulder pain, was not permanent and stationary, and was entitled to temporary disability from October 18, 2018 through the date of the QME evaluation on July 10, 2021.

Dr. Sclafani's report supported entitlement to temporary disability through the QME evaluation date.

From the decision · page 2On July 10, 2021, applicant was evaluated by panel qualified medical evaluator (PQME) Joseph Sclafani, M.D., with an interpreter present, and Dr. Scafani issued a report on September 19, 2021. (Exhibit J9, Report of Joseph Sclafani, M.D., 9/19/2021, p. 2.) Dr. Sclafani stated that applicant presented with "persistent right elbow and shoulder pain." (Exhibit J9, p. 14.) He determined that applicant had not reached maximum medical improvement and was not yet permanent and stationary for the injuries being evaluated. (Exhibit J9, p. 15.) He concluded that "applicant's right shoulder condition is consistent with rotator cuff impingement syndrome." (Exhibit J9, p. 14.) Further, he stated that: "From the evidence currently available for review,

Temporary disability is incapacity to work expected to improve with medical treatment; burden is on defendant to prove termination for cause to deny benefits.

Applied to determine entitlement to temporary disability benefits and burden of proof on defendant.

Applicant's testimony that she intended to work full time and understood the job could become permanent, and that she did not know her employment status until receiving the termination letter.

From the decision · page 3At trial, applicant testified in relevant part as follows: she does not read Spanish and is only able to write her name and does not speak English and understands very little. (MOH/SOE, 4:29- 4:30.) Prior to working for defendant, she had worked year-round in the fields for Blue Rock. (MOH/SOE 4:34-4:35.) She worked at Blue Rock for six years and hurt her knee resulting in her being out of work for two or three years. (MOH/SOE, 4:41-4:46.) After being out of work, she went to work in the kitchen at a Chinese restaurant, but applicant wanted full time work which they could not offer. (MOH/SOE, 5:1-5:5.)

Defendant's post-injury letter stating employment ended due to end of temporary assignment, which was contradicted by pre-injury hiring documents and applicant's testimony.