What the panel ordered
Petition for Reconsideration denied.
Defendant filed a timely Petition for Reconsideration challenging the Expedited Findings of Fact, Orders, and Award dated November 22, 2022. The WCAB reviewed the record and adopted and incorporated the WCJ's report.
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.
Defendant waived challenge to change of physician and award of medical care; order stands.
From the decision · page 3Defendant does not challenge the findings and orders that applicant is entitled to change treating physician or the award of medical care for applicant's back.
PQME Sclafani's report was found to be substantial evidence supporting temporary partial disability beginning August 8, 2022, and there was no evidence of a subsequent injury being the sole cause of disability.
From the decision · page 4Expedited Hearing was held October 19, 2022, with issues of, inter alia, temporary disability from the day of PQME evaluation on August 8, 2022, need for further medical treatment, and applicant's request to change treating physician.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
PQME Sclafani found applicant had not reached maximum medical improvement and required temporary partial work preclusions as of August 8, 2022.
Favours Applicant prevailed
This supported the award of temporary partial disability beginning August 8, 2022.
From the decision · page 4PQME Sclafani found "the applicant has not reached maximum medical improvement and is not yet permanent and stationary for the injuries being evaluated." (EXH XX, pg. 10). PQME Sclafani further found "the applicant requires the following temporary partial work preclusions: No lifting, carrying, pushing, or pulling objects weighing over 25 pounds. No bending, twisting, stooping, or kneeling." (EXH XX, pg. 11 ).
There was no evidence of a subsequent injury being the sole cause of disability.
Favours Applicant prevailed
This meant the temporary disability was attributable to the accepted July 6, 2021, injury.
From the decision · page 5There is no basis to disturb the parties stipulation that applicant sustained an industrial low back injury on July 6, 2021. Further, there is no evidence of a "subsequent injury" or reason not to find that temporary partial disability stems from the accepted July 6, 2021, low back injury.
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.
Applicant has not reached maximum medical improvement and is not yet permanent and stationary for the injuries being evaluated; requires temporary partial work preclusions.
PQME Sclafani's report was found to be substantial evidence supporting temporary partial disability.
From the decision · page 6Dr. Sclafani's report is found to be substantial evidence.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
McGlinn v WCAB (1977) 68 CA3d 527, 534, 42 CCC 214; Maritz Travel Agency v WCAB (McCue) (2003) 68 CCC 1227 (writ denied)
The employer bears the burden of proving a subsequent injury is the sole cause of disability for temporary disability to be denied.
Temporary disability is awarded unless a subsequent injury is the sole intervening cause; here, no such evidence was presented.
From the decision · page 5Even if were there a "subsequent injury", temporary disability is awarded unless that injury is the sole intervening cause of the temporary disability. McGlinn v WCAB (1977) 68 CA3d 527, 534, 42 CCC 214. The employer bears the burden of proving the subsequent injury is the sole cause of the disability. Maritz Travel Agency v WCAB (McCue) (2003) 68 CCC 1227 (writ denied). Here, however, it is clear the temporary partial disability stems from the accepted July 6, 2021, injury.
What proof carried it
The evidence the panel weighed, by kind.
The WCJ's credibility determination was given great weight because the WCJ had the opportunity to observe the demeanor of the witness.
From the decision · page 1We have given the WCJ's credibility determination great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)
PQME Sclafani physically examined the applicant, took a comprehensive history, and reviewed medical records including imaging.
From the decision · page 5PQME Sclafani reviewed medical records from July 8, 2021, through March 13, 2022, including X-ray and MRI of the lumbar spine. (EXH XX, pgs 15 - 16). Dr. Sclafani physically evaluated the applicant, (EXH XX pgs 7 - 9), and took a comprehensive history. (EXH XX pgs 3 - 7). Dr. Sclafani provided diagnosjs of 1. L4-5 disc disruption with annular tear (industrial), 2. L5-S1 disc disruption with annular tear (industrial), 3. Bilateral lumbar radiculopathy (industrial), 4. Myofascial pain and rigidity of the lumbar supporting musculature (industrial), and 5. L5-S3 arachnoid cyst (industrial aggravation).
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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