What the panel ordered
Petition for Reconsideration granted; matter returned to trial level for further proceedings solely to address reasonable attorney fees relating to the award of temporary total disability.
Defendant seeks reconsideration of the December 2, 2024 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, which granted reconsideration of the August 8, 2024 Findings, Award, and Orders and substituted a new FA&O awarding temporary total disability benefits.
This docket was decided more than once. Shown here is the latest released decision; we also hold December 2, 2024.
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.
The Appeals Board found that the applicant was entitled to temporary total disability benefits for the period from September 1, 2022 through April 26, 2023 and ongoing, subject to the 104 week cap, rejecting the defendant's argument that the applicant failed to meet her burden of proof to show intent to work after retirement. The matter was remanded solely to address reasonable attorney fees related to the award.
From the decision · page 1Defendant seeks reconsideration of our December 2, 2024 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration (O&O) wherein we granted reconsideration of an August 8, 2024 Findings, Award, and Orders (FA&O) and rescinded and substituted the FA&O with a new FA&O which found applicant was entitled to temporary total disability for the period from September 1, 2022 through April 26, 2023 and ongoing, subject to the 104 week cap under Labor Code1 section 4656(c)(2).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant testified at trial that but for the work injury, she was and continues to be willing to return to work.
Favours Applicant prevailed
This testimony supported the finding that applicant was entitled to temporary total disability benefits, rejecting defendant's argument that applicant intended to remove herself from the labor market by retirement paperwork.
From the decision · page 5II. Turning now to the Petition, defendant contends that applicant's testimony at trial was inconsistent and vague, and that applicant failed to meet her burden of proof in demonstrating her intent to work after retirement. (Petition, pp. 3, 6.) As such, defendant argues that deference should be given to the WCJ's August 8, 2024 FA&O wherein the WCJ found that applicant was not entitled to retroactive or continuing temporary total disability. (Petition, p. 6.) As explained in our January 22, 2025 O&O, the WCJ previously confirmed that applicant testified that but for the work injury, applicant was and continues to be willing to go return to work. (Report, p. 5.) Further, although it is true that at the time of applicant's April 19, 2023 deposition, applicant testified she was not thinking about work, we also find it reasonable for applicant to have felt differently at that time as she had recently undergone surgery. (O&O, p.
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.
Found applicant temporarily totally disabled from June 8, 2023 through May 16, 2024.
From the decision · page 2Applicant treated with Dr. David Suarez who served as her primary treating physician and found her temporarily totally disabled during the period from June 8, 2023 through May 16, 2024. (Exhibits 1-7.)
Found applicant temporarily totally disabled and continuing as of December 5, 2023.
From the decision · page 3The parties proceeded with discovery and retained Dr. Kyle Natsuhara as the panel Qualified Medical Evaluator (QME). In his December 5, 2023 report, Dr. Natsuhara found applicant temporarily totally disabled and continuing. (Exhibit 11, pp. 18-19.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5909
Petition for reconsideration must be acted upon within 60 days of transmission to the Appeals Board.
The Appeals Board timely acted on the petition within the 60-day period as required by section 5909(a).
From the decision · page 4Here, according to Events, the case was transmitted to the Appeals Board on December 23, 2024, and 60 days from the date of transmission is February 21, 2025. This decision was issued by or on February 21, 2025, so that we have timely acted on the petition as required by section 5909(a).
What proof carried it
The evidence the panel weighed, by kind.
Applicant's trial testimony indicating willingness and intent to return to work but for the work injury, despite prior deposition testimony indicating she was not thinking about work at that time.
From the decision · page 5II. Turning now to the Petition, defendant contends that applicant's testimony at trial was inconsistent and vague, and that applicant failed to meet her burden of proof in demonstrating her intent to work after retirement. (Petition, pp. 3, 6.) As such, defendant argues that deference should be given to the WCJ's August 8, 2024 FA&O wherein the WCJ found that applicant was not entitled to retroactive or continuing temporary total disability. (Petition, p. 6.) As explained in our January 22, 2025 O&O, the WCJ previously confirmed that applicant testified that but for the work injury, applicant was and continues to be willing to go return to work. (Report, p. 5.) Further, although it is true that at the time of applicant's April 19, 2023 deposition, applicant testified she was not thinking about work, we also find it reasonable for applicant to have felt differently at that time as she had recently undergone surgery. (O&O, p.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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