ADJ12859017 · December 6, 2021

Defendant not entitled to credit for overpayment of temporary disability from 12/8/2020 to 2/15/2021 because treating physician reports indicated partial disability and defendant did not timely object to these reports under LC 4062; credit allowed from 2/16/2021 to 3/1/2021 based on AME report finding permanent and stationary status as of 2/15/2021.

From the decision · page 2*** 8. It is found that defendant is not entitled to credit for overpayment of temporary disability for the period from December 8, 2020 through February 15, 2021. It is found that defendant is entitled to credit for overpayment of temporary disability for the period February 16, 2021 through March 1, 2021.

Credit for permanent disability advances paid in ADJ12859017 allowed against benefits due in ADJ12859018 because there is no apportionment under Benson, no bad faith by parties, and credit does not extinguish applicant's recovery; injury is cumulative trauma with no specific date of injury.

From the decision · page 6THE WCJ ERRED IN ALLOWING DEFENDANT A CREDIT FOR PERMANENT DISABILITY PAID IN CASE ADJ12859017 FROM BENEFITS DUE IN CASE ADJ12859018

Treating physician Dr. Michael Luciano's reports indicated applicant was only partially temporarily disabled from 12/8/2020 to 2/15/2021, not totally temporarily disabled.

Favours Applicant prevailed

This supported denying defendant credit for overpayment of temporary disability for that period under LC 4062 and Edwards.

From the decision · page 4Although the medical record in this matter is at times less than precise, the reports of treating physician Dr. Michael Luciano and the reports of AME Steven Silbart do provide adequate opinions upon which to resolve the issues presented. Contrary to Petitioner's assertion, treating physician Dr. Michael Luciano never stated in any of his three reports submitted into evidence that applicant was totally temporarily disabled during the time frame from December 8, 2020 through February 15, 2021. Rather, in each of his reports, dated December 10, 2020, January 29, 2021 and March 18, 2021 (Applicant's exhibits 1, 2 and 3), Dr. Luciano indicated only that applicant was released to modified duties. Thus, applicant was partially temporarily disabled during the time span in dispute from December 8, 2020 to March 1, 2021. Although there was no direct evidence submitted regarding whether the employer could accommodate these work restrictions, it can be reasonably inferred that such accommodations were not possible since the parties stipulated that defendant initiated temporary disability benefits in case ADJ12859018 as of June 9, 2020 and continued paying those benefits up through March 1, 2021 (Minutes of Hearing dated July 21, 2021 p.3, lines 22-23).

AME Dr. Steven Silbart's February 15, 2021 report found applicant permanent and stationary as of that date.

Favours Defendant prevailed

This supported allowing defendant credit for overpayment of temporary disability from 2/16/2021 to 3/1/2021.

From the decision · page 6However, the principles of Edwards do not mandate that there be no credit allowed for TD overpayment for the period from February 16, 2021 through March 1, 2021 in the case of [ADJ12859018]. Dr. Silbart's opinions should be afforded great weight as the parties clearly respected his expertise in utilizing him as an AME. Although there were some inconsistencies in Dr. Silbart's reporting, particularly regarding Petitioner's disability status, the opinions expressed in Dr. Silbart's February 15, 2021 report were definitive and premised upon the cumulative results of a physical exam of applicant as well as diagnostic studies consisting of an MRI scan and EMG/NCV testing along with a review of relevant medical records. It was not until that date that Dr. Silbart opined that applicant had reached a permanent and stationary plateau and assessed and outlined factors of permanent impairment. Although there is conflict within Dr. Silbart's reports as to whether applicant was permanent and stationary at an earlier date, there can be no question that as of February 15, 2021 applicant was permanent and stationary. As such, since defendant continued to pay temporary disability benefits through March 1, 2021, defendant should be permitted credit for overpayment of temporary disability for the period February 16, 2021 through March 1, 2021.

There is no apportionment under Benson and no bad faith by parties; credit for permanent disability advances from ADJ12859017 does not extinguish applicant's recovery in ADJ12859018.

Favours Applicant prevailed

Supported allowing credit for permanent disability advances paid in one case against benefits due in another.

From the decision · page 7As outlined above, multiple factors support the discretionary decision in this matter, pursuant to Labor Code Section 4909, to allow a credit for permanent disability benefits paid in case ADJ12859017 to be credited against similar benefits in ADJ12859018 as follows: the medical evidence in this matter supports only the finding of a cumulative trauma injury; there are no Benson apportionment issues; this matter does not involve bad faith actions by either party; allowing credit for permanent disability payments made in 2019 will not deprive applicant of receiving any "new money" for the ADJ12859018 cumulative trauma injury. Thus, the rationales underpinning the decisions in Dunehew and Maples are inapplicable to this case. Rather, it is appropriate and equitable, as well as avoiding any potential double recovery by applicant, that credit be allowed for permanent disability benefits paid under ADJ12859017 against permanent disability benefits still owed on ADJ12859018.

Indicated applicant was released to modified duties and partially temporarily disabled from 12/8/2020 to 3/1/2021; did not state total temporary disability during this period.

Supports finding that defendant is not entitled to credit for overpayment of temporary disability from 12/8/2020 to 2/15/2021.

From the decision · page 4Although the medical record in this matter is at times less than precise, the reports of treating physician Dr. Michael Luciano and the reports of AME Steven Silbart do provide adequate opinions upon which to resolve the issues presented. Contrary to Petitioner's assertion, treating physician Dr. Michael Luciano never stated in any of his three reports submitted into evidence that applicant was totally temporarily disabled during the time frame from December 8, 2020 through February 15, 2021. Rather, in each of his reports, dated December 10, 2020, January 29, 2021 and March 18, 2021 (Applicant's exhibits 1, 2 and 3), Dr. Luciano indicated only that applicant was released to modified duties. Thus, applicant was partially temporarily disabled during the time span in dispute from December 8, 2020 to March 1, 2021. Although there was no direct evidence submitted regarding whether the employer could accommodate these work restrictions, it can be reasonably inferred that such accommodations were not possible since the parties stipulated that defendant initiated temporary disability benefits in case ADJ12859018 as of June 9, 2020 and continued paying those benefits up through March 1, 2021 (Minutes of Hearing dated July 21, 2021 p.3, lines 22-23).

Initially did not comment on disability status; later reports conflicted but ultimately found applicant permanent and stationary as of 2/15/2021; opinion given great weight for credit from 2/16/2021 to 3/1/2021.

Supports allowing credit for overpayment of temporary disability from 2/16/2021 to 3/1/2021.

From the decision · page 5The only medical report indicating that applicant was actually totally temporarily disabled during the time frame in question from December 8, 2020 through March 1, 2021 is Dr. Silbart's record review report dated December 17, 2021 (Joint Exhibit BB at p. 3), wherein the doctor stated that as of that date applicant "remains validly Temporarily Totally Disabled." This was a somewhat curious assertion since Dr. Silbart's initial report dated December 7, 2020 (the same date as the examination) did not comment on applicant's disability status (Joint Exhibit AA). Thereafter, in his final report dated February 15, 2021, Dr. Silbart indicated that it was his opinion that applicant became permanent and stationary as of the date of his examination on December 7, 2020 (Joint Exhibit DD at p. 1).

Labor Code Section 4062

Defendant loses right to object to treating physician's reports if not timely objected under LC 4062, affecting credit for overpayment of temporary disability.

From the decision · page 5In this case the treating doctor reports of Dr. Luciano, upon which it reasonably appears defendant premised its payments of temporary disability benefits assuming work restrictions could not be accommodated, essentially find applicant temporarily disabled for the period from the AME exam on December 7, 2020 through the AME permanent and stationary report of February 15, 2021. There being no evidence that defendant ever objected to these reports from Dr. Luciano during this time frame pursuant to LC 4062, the application of Edwards to these facts leads to the conclusion that defendant should not be allowed a credit for temporary disability benefits for the period December 8, 2020 through February 15, 2021. As noted in Edwards, where defendant fails to object to treating doctors reports regarding applicant's temporary disability status within the time limit provided in Labor Code Section 4062, defendant loses the right to object to that determination in the future.

California Court of Appeal

J.C. Penney v. Workers' Compensation Appeals Board (Edwards) (2009) 175 Cal. App. 4th 818

Applied to determine validity of credit for overpayment of temporary disability benefits.

From the decision · page 4Petitioner is correct in asserting that the Findings and Award in ADJ12859018 should be changed to reflect that defendant should not be granted a credit for overpayment of temporary disability for the period December 8, 2020 through February 15, 2021 pursuant to the standard of J.C. Penney v. Workers' Compensation Appeals Board (Edwards) (2009) 175 Cal. App. 4th 818, 74 Cal. Comp. Cases 826. However, under the rationale of that same case, Petitioner's argument that there should be no credit for overpayment of temporary disability from February 16, 2021 through March 1, 2021 should fail.

Treating physician reports indicating partial temporary disability and no total temporary disability from 12/8/2020 to 2/15/2021

From the decision · page 4Although the medical record in this matter is at times less than precise, the reports of treating physician Dr. Michael Luciano and the reports of AME Steven Silbart do provide adequate opinions upon which to resolve the issues presented. Contrary to Petitioner's assertion, treating physician Dr. Michael Luciano never stated in any of his three reports submitted into evidence that applicant was totally temporarily disabled during the time frame from December 8, 2020 through February 15, 2021. Rather, in each of his reports, dated December 10, 2020, January 29, 2021 and March 18, 2021 (Applicant's exhibits 1, 2 and 3), Dr. Luciano indicated only that applicant was released to modified duties. Thus, applicant was partially temporarily disabled during the time span in dispute from December 8, 2020 to March 1, 2021. Although there was no direct evidence submitted regarding whether the employer could accommodate these work restrictions, it can be reasonably inferred that such accommodations were not possible since the parties stipulated that defendant initiated temporary disability benefits in case ADJ12859018 as of June 9, 2020 and continued paying those benefits up through March 1, 2021 (Minutes of Hearing dated July 21, 2021 p.3, lines 22-23).

AME Dr. Silbart's definitive report finding permanent and stationary status as of 2/15/2021

From the decision · page 6However, the principles of Edwards do not mandate that there be no credit allowed for TD overpayment for the period from February 16, 2021 through March 1, 2021 in the case of [ADJ12859018]. Dr. Silbart's opinions should be afforded great weight as the parties clearly respected his expertise in utilizing him as an AME. Although there were some inconsistencies in Dr. Silbart's reporting, particularly regarding Petitioner's disability status, the opinions expressed in Dr. Silbart's February 15, 2021 report were definitive and premised upon the cumulative results of a physical exam of applicant as well as diagnostic studies consisting of an MRI scan and EMG/NCV testing along with a review of relevant medical records. It was not until that date that Dr. Silbart opined that applicant had reached a permanent and stationary plateau and assessed and outlined factors of permanent impairment. Although there is conflict within Dr. Silbart's reports as to whether applicant was permanent and stationary at an earlier date, there can be no question that as of February 15, 2021 applicant was permanent and stationary. As such, since defendant continued to pay temporary disability benefits through March 1, 2021, defendant should be permitted credit for overpayment of temporary disability for the period February 16, 2021 through March 1, 2021.