ADJ12906041 — California WCAB decision

What the panel ordered

Petitions for Reconsideration granted; WCJ's decision amended to reflect temporary disability period from December 28, 2019 to December 26, 2021; other findings affirmed; case ADJ13548947 found premature.

Petitions for Reconsideration of the WCJ's Joint Findings of Facts and Order of May 6, 2024 were filed by both applicant and defendant, challenging the temporary disability period start date and credits for EDD lien settlement.

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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.

Other disputed issueDefendant prevailed

The WCJ allowed defendant credit for the EDD lien settlement, which the WCAB affirmed as consistent with Labor Code sections 4903(f) and 4904 to avoid double recovery and encourage settlement.

From the decision · page 1Applicant, who is representing himself, and defendant have filed separate Petitions for Reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings of Facts and Order of May 6, 2024, wherein it was found in case ADJ12906041 that "Applicant is entitled to a temporary total disability period from February 1, 2020 until February 1, 2022" and "Defendant is to take credit for the EDD resolution against temporary total disability owed to the Applicant."1 In case ADJ12906041, while employed on October 31, 2019 as a general and trauma surgeon, applicant sustained industrial injury to the psyche and claims injury to the heart, wrists, hands, neck, back, brain, and balance and in the forms of sleep disorder and chest pain.

The facts that decided it

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

Applicant performed last surgery in December 2019 and rescheduled all patients, indicating wage loss and temporary disability starting then.

Favours Applicant prevailed

Supports earlier start date of temporary disability period than WCJ's original finding.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Applicant received unemployment disability benefits starting December 28, 2019, consistent with temporary disability.

Favours Applicant prevailed

Supports finding of temporary disability from December 28, 2019.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Labor Code sections 4903(f) and 4904 authorize credit for EDD lien settlement to prevent double recovery.

Favours Defendant prevailed

Justifies defendant's credit for EDD lien settlement against temporary disability owed.

From the decision · page 3of commencement of temporary disability payment." With regard to applicant's contention that defendant is not entitled to a credit for its settlement of EDD's lien claim, such a credit is contemplated by Labor Code sections 4903(f) and 4904. Although in this case the defendant paid the entire amount of the lien claim before trial, an absurd result would be reached if sections 4903 and 4904 mandated payment of an unresolved lien at trial, but allowed a credit to be disallowed only because the lien was settled prior to trial. Such a result would disincentivize settlement and lead to double recovery.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Applicant's testimony that he could not focus on work, rescheduled all patients, and performed last surgery in December 2019 supports earlier start date of temporary disability.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

Documentary evidencefavours Applicant prevailed

Applicant's application for and receipt of unemployment disability benefits supports temporary disability from December 28, 2019.

From the decision · page 2However, while applicant testified that he "kept his office open" until an unspecified date in January 2020, during the period after his injury he told his staff "that he could not focus on work," he "rescheduled all" of his patients, and performed his last surgery in December [of 2019]." (Minutes of Hearing and Summary of Evidence of April 4, 2024 trial at p. 14.) Although "he gave his staff until January" it is clearly inferred that applicant sustained wage loss in an amount greater than the statutory maximum temporary disability rate as of December 2019. Consistent with the applicant's application for unemployment disability benefits, and the payment of such benefits by EDD, we find that applicant was temporarily disabled as of December 28, 2019.

ADJ12906041 · July 12, 2024

What the panel ordered

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The facts that decided it

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