ADJ16961549 · September 16, 2024

The applicant did not meet the burden of proof for temporary total disability; the PQME report was substantial and found the applicant P&S/MMI with no TTD period.

From the decision · page 6Applicant asserts that the medical evidence that was submitted shows a continuing entitlement to TTD. The undersigned reviewed the evidence and indicated that the applicant did not meet their burden of proof. The party with the affirmative on the issue has the burden of proof. Tyler, McClune and McDuffie does not apply as the PQME report is substantial. The reports submitted by the applicant did not demonstrate a change in the applicant's condition to merit further review by the PQME as the PQME already indicated that the MRI's should be provided under future medical.

PQME found applicant P&S/MMI on 7/31/2023 with no period of TTD.

Favours Defendant prevailed

This finding was relied upon to deny the applicant's claim for temporary total disability benefits.

From the decision · page 5Defendant relied on Court Exhibit X PQME report of Osep Armagan dated 7/31/2023. In that report, the PQME reviewed the evidence and indicated the applicant was MMI/P&S on the date of the exam. The PQME did not find any period of TTD but did find a period of TPD. Dr. Armagan indicated in his report that the applicant informed him that she was able to work although she wanted to wait. The PQME provided PD for her back and work restriction as well as future medical care. As stated in the Opinion, the "PQME indicated that the applicant told him that she continued to work light duty from 12/2021 until 11/15/2022 when the employer's business closed. Thereafter she received EDD unemployment. The applicant indicated to the PQME that she is able to return to work but she wanted to wait to start a new job until her leg felt better. The PQME indicated that

Applicant did not provide substantial evidence of temporary total disability or temporary partial disability after PQME report.

Favours Defendant prevailed

Lack of substantial evidence supported denial of additional benefits and upheld PQME report as substantial evidence.

From the decision · page 6Applicant asserts that the medical evidence that was submitted shows a continuing entitlement to TTD. The undersigned reviewed the evidence and indicated that the applicant did not meet their burden of proof. The party with the affirmative on the issue has the burden of proof. Tyler, McClune and McDuffie does not apply as the PQME report is substantial. The reports submitted by the applicant did not demonstrate a change in the applicant's condition to merit further review by the PQME as the PQME already indicated that the MRI's should be provided under future medical.

Found applicant P&S/MMI on 7/31/2023 with no period of TTD but a period of TPD; provided work restrictions and future medical care recommendations.

PQME report was substantial evidence and was relied upon by the WCJ and Appeals Board to deny TTD entitlement.

From the decision · page 5Defendant relied on Court Exhibit X PQME report of Osep Armagan dated 7/31/2023. In that report, the PQME reviewed the evidence and indicated the applicant was MMI/P&S on the date of the exam. The PQME did not find any period of TTD but did find a period of TPD. Dr. Armagan indicated in his report that the applicant informed him that she was able to work although she wanted to wait. The PQME provided PD for her back and work restriction as well as future medical care. As stated in the Opinion, the "PQME indicated that the applicant told him that she continued to work light duty from 12/2021 until 11/15/2022 when the employer's business closed. Thereafter she received EDD unemployment. The applicant indicated to the PQME that she is able to return to work but she wanted to wait to start a new job until her leg felt better. The PQME indicated that

California Labor Code

Labor Code section 5909

The Appeals Board must act on a petition for reconsideration within 60 days of transmission of the case to the Appeals Board.

From the decision · page 1Former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

California Code of Regulations

CCR section 9785(a)(8)

Defines maximum medical improvement/permanent and stationary status as the point when the condition is well stabilized and unlikely to change substantially in the next year.

From the decision · page 6Maximum medical improvement/permanent and stationary status is defined as the "point when the employee has reached maximum medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment." CCR section 9785(a)(8). In this case, we have the 20-20 vision of hindsight as in the nearly one year since the PQME has evaluated the applicant has not had any substantial change to merit TTD/TPD benefits. No surgery has been requested or scheduled. Second, applicant has attended medical appointments on a sporadic and meandering basis with various doctors none of whom identify themselves as the PTP in this case. Third, not one of the medicals has ever placed the applicant on TTD. Only one report from a spine consult places the applicant on temporary partial disability and defers to the PTP whose identity is unknown. In addition, that report stated that a narrative would follow and it did not.

Applicant's testimony about wanting to wait to start a new job was not rebutted but did not overcome PQME findings.

From the decision · page 5Defendant relied on Court Exhibit X PQME report of Osep Armagan dated 7/31/2023. In that report, the PQME reviewed the evidence and indicated the applicant was MMI/P&S on the date of the exam. The PQME did not find any period of TTD but did find a period of TPD. Dr. Armagan indicated in his report that the applicant informed him that she was able to work although she wanted to wait. The PQME provided PD for her back and work restriction as well as future medical care. As stated in the Opinion, the "PQME indicated that the applicant told him that she continued to work light duty from 12/2021 until 11/15/2022 when the employer's business closed. Thereafter she received EDD unemployment. The applicant indicated to the PQME that she is able to return to work but she wanted to wait to start a new job until her leg felt better. The PQME indicated that