What the panel ordered
Petition for reconsideration granted; Findings of Fact affirmed except issue of temporary disability benefits for June 5, 2023 through October 9, 2023 deferred; matter returned to trial level for further proceedings
Petition for removal treated as petition for reconsideration, reconsideration granted, Findings of Fact affirmed except issue of temporary disability benefits for June 5, 2023 through October 9, 2023 deferred and matter remanded for further proceedings
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 WCJ found insufficient medical evidence to establish temporary disability for the period, but the WCAB deferred the issue for further development due to incomplete consideration of medical evidence including Dr. Elias's reports.
From the decision · page 8Because the record fails to fully address the medical evidence of the August 16, 2023 Work Status Note and the Dr. Elias Report of September 13, 2023, we conclude that the record should be further developed on the issue of whether the evidentiary record establishes applicant's claim for temporary disability benefits for the period of June 5, 2023 through October 9, 2023. (See Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [65 Cal.Rptr.2d 431, 62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [72 Cal.Rptr.2d 898, 63 Cal.Comp.Cases 261] (finding that the Appeals Board has the discretionary authority to develop the record when appropriate to fully adjudicate the issues); see also § 5313.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was not provided with an offer of modified or alternative work for the period June 5, 2023 through October 9, 2023.
Favours Applicant prevailed
Employer's failure to offer modified work affects entitlement to temporary disability benefits.
From the decision · page 2On May 28, 2024, the matter proceeded to continued trial. (Minutes of Hearing (Further), May 28, 2024, p. 1.) The parties stipulated that applicant did not receive defendant's July 17, 2023 and August 3, 2023 mailings communicating a "Transitional Work Job Offer." (Id., p. 2:9-18.)
Medical evidence including Dr. Elias's reports placed applicant on modified activity with no use of right arm starting August 17, 2023 and requested right shoulder arthroscopy.
Favours Applicant prevailed
This medical evidence is relevant to establishing temporary disability but the record was incomplete on this evidence, leading to remand for further proceedings.
From the decision · page 2The WCJ admitted an exhibit entitled "Work Progress Status Note dated August 16, 2023" into evidence. In it, Ramy Elias, M.D. places applicant on "Modified Activity" commencing August 17, 2023, stating that applicant was to have "No use of arm." (Ex. 1, Work Progress Status Note, August 16, 2023.)
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.
Placed applicant on modified activity with no use of right arm starting August 17, 2023; requested right shoulder arthroscopy; stated applicant will return to work with restrictions of no use of right upper extremity.
Medical evidence relevant to temporary disability claim; record incomplete on this evidence.
From the decision · page 2The WCJ admitted an exhibit entitled "Work Progress Status Note dated August 16, 2023" into evidence. In it, Ramy Elias, M.D. places applicant on "Modified Activity" commencing August 17, 2023, stating that applicant was to have "No use of arm." (Ex. 1, Work Progress Status Note, August 16, 2023.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856
Temporary disability indemnity is payable during the injured worker's healing period until recovery or permanent and stationary status; employer's failure to show modified work was available and offered affects entitlement to temporary disability.
Applied to determine entitlement to temporary disability benefits for June 5, 2023 through October 9, 2023.
From the decision · page 7In general, temporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status. [] Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work). [] If the employee is able to obtain some type of work despite the partial incapacity, the worker is entitled to compensation on a wage-loss basis. [] If the partially disabled worker can perform some type of work but chooses not to, his 'probable earning ability' will be used to compute wage- loss compensation for partial disability. [] If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Huston, supra, at p. 806 [Emphasis added].)
What proof carried it
The evidence the panel weighed, by kind.
Stipulation that applicant did not receive offers of alternative work on July 17, 2023 and August 3, 2023
From the decision · page 2On May 28, 2024, the matter proceeded to continued trial. (Minutes of Hearing (Further), May 28, 2024, p. 1.) The parties stipulated that applicant did not receive defendant's July 17, 2023 and August 3, 2023 mailings communicating a "Transitional Work Job Offer." (Id., p. 2:9-18.)
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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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