What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration of the Findings and Award issued on August 30, 2024, denied by the Appeals Board on 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 WCJ's finding of temporary disability benefits entitlement from April 18, 2024 and continuing indefinitely was supported by credible applicant testimony and medical evidence, despite defendant's contention that Dr. Ting's opinion of permanent and stationary status was dispositive. The Appeals Board found Dr. Ting's opinion was based on inadequate medical history and unsupported by other medical reports, and applicant's testimony that he never declined surgery was credible and unrebutted.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A) issued on August 30, 2024, wherein the workers' compensation administrative law judge (WCJ) found as relevant that (1) while employed as a bus driver on June 14, 2023, applicant sustained injury arising out of and in the course of employment to his right shoulder; and (2) the injury caused an additional period of temporary disability beginning on April 19, 2024 and continuing indefinitely thereafter.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's credible testimony that he never declined surgery and that Dr. Ting never discussed surgery with him.
Favours Applicant prevailed
This undermined Dr. Ting's opinion that applicant was permanent and stationary based on a decision not to pursue surgery, supporting the finding of ongoing temporary disability.
From the decision · page 5Also of importance is applicant's credible and unrebutted testimony regarding whether he ever chose not to undergo surgery. Applicant clarified at trial that he was told by Dr. Haber that he would not pursue surgery at that time, but applicant did not decline surgery presumably because it was not recommended at the time. Furthermore, applicant testified at trial that he [n]ever had a discussion with Dr. Ting about surgery, and that Dr. Ting never brought up the issue of surgery with him. Applicant also stated at trial that he would undergo surgery if it was an option.
Dr. Ting's opinion of permanent and stationary status was based on inadequate medical history and unsupported by other medical reports.
Favours Applicant prevailed
This led the Appeals Board to reject Dr. Ting's opinion and find substantial evidence supported temporary disability benefits entitlement.
From the decision · page 8However, Dr. Ting's opinion was based upon inadequate medical history as demonstrated by applicant's credible testimony that Dr. Ting did not discuss the option of surgery and he had not declined that option. (Opinion on Decision, p. 5; Report, p. 5; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660] (stating that the WCJ's assessment of a witness's credibility is entitled to great weight and should not be rejected without contrary evidence of considerable substantiality).)
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.
Opined applicant was permanent and stationary as of December 1, 2023, based on six months since injury and conservative treatment without surgery. Provided 3% whole person impairment rating. Allowed possibility of surgery and new temporary disability period if surgery became necessary.
Dr. Ting's opinion was weighed but found based on inadequate medical history and unsupported by other medical evidence; applicant's credible testimony contradicted his assertion that surgery was declined.
From the decision · page 2PERMANENT AND STATIONARY The claimant has reached maximum medical improvement and therefore is permanent and stationary. It has been approximately 6 mos since the claimant first injured his right shoulder. The diagnosis of a torn biceps tendon no retraction and surgical consult chose to treat conservatively and nonoperativly. The claimant has undergone physical therapy, nsaids and HEP and now is permanent and stationary. (Ex. 103, Report of PQME Dr. Arthur Ting, December 1, 2023, p. 11.)
Reviewed MRI showing rupture of proximal long head of right biceps tendon. Recommended conservative treatment and provided cortisone injection. Did not recommend surgery at that time.
His report supported conservative treatment and did not indicate surgery was declined; consistent with applicant's testimony that surgery was not discussed or declined.
From the decision · page 4Medically, applicant was seen by Dr. Daniel Haber on August 31, 2023 (Exh. 5), wherein Dr. Haber reviewed a right shoulder MRI which showed a "rupture of the proximal long head of the (right) biceps tendon." He stated that applicant was agreeable to "taking a conservative approach for now," and he then provided applicant with a cortisone injection.
Diagnosed possible rotator cuff tear and ruptured proximal biceps tendon. Recommended MRI and deferred work status to QME. Did not indicate surgery was declined or permanent and stationary status.
His report supported further evaluation and did not contradict applicant's claim of ongoing disability.
From the decision · page 2The WCJ admitted the Report of Dr. Warren King dated March 18, 2024 into evidence.
Diagnosed right biceps tendon injury with pain and recommended surgical evaluation. Took applicant off work as of March 7, 2024, but report silent on work status.
His recommendation for surgical evaluation and off work status supported ongoing disability.
From the decision · page 4Applicant was then seen for treatment with Dr. George Rakkar. In his March 7, 2024 report, Dr. Rakkar diagnosed the right biceps tendon injury, with pain in the right shoulder. Dr. Rakkar recommended that applicant "see orthopedics as soon as possible for surgical evaluation." He was then seen by Dr. Warren King on March 18, 2024 (Exh. 4) who requested to review a right shoulder MRI, and deferred work status to the QME. Dr. King stated that if the MRI showed a rotator cuff tear, then applicant would be a surgical candidate.
Found applicant off work until June 30, 2024 and referred for MRI. Supported temporary disability from April 18, 2024 onward.
His reports provided medical evidence supporting temporary disability entitlement from April 18, 2024.
From the decision · page 4Applicant then had his treatment taken over by Dr. James Saunders, who first reported on April 18, 2024 (Exh. 2), wherein he found that applicant is recommended off work by Dr. Rakkar until June 30, 2024. Dr. Saunders also diagnosed a right biceps tendon injury. Although Dr. Saunders refers to off work status by Dr. Rakkar, the only report in evidence from Dr. Rakkar of March 7, 2024 does not discuss applicant's work status.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246; Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162
Substantial evidence must support WCJ decisions, including medical opinions framed in reasonable medical probability and based on adequate examination and history.
The Appeals Board applied these standards to evaluate the sufficiency of medical evidence supporting temporary disability benefits entitlement.
From the decision · page 7II. Defendant contends that the finding that applicant is entitled to temporary disability benefits beginning on April 19, 2024 and continuing indefinitely thereafter is unsupported by substantial medical evidence. Specifically, defendant argues that Dr. Ting opined that applicant was permanent and stationary as of December 21, 2023, and that Dr. Ting's opinion is consistent with the reporting of Dr. Haber and Dr. King because they have not "submit[ted] an RFA for surgery." (Petition, p. 4:10.) All decisions by a WCJ must be supported by substantial evidence. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [113 Cal. Rptr. 162, 520 P.2d 978, 39 Cal.Comp.Cases 310]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [83 Cal. Rptr. 208, 463 P.2d 432, 35 Cal.Comp.Cases 16]; Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246 [262 Cal. Rptr. 537, 54 Cal.Comp.Cases 349].) Substantial evidence has been described as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be more than a mere scintilla. (Braewood Convalescent Hosp. v. Workers' Comp.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible and unrebutted testimony that he never declined surgery and that Dr. Ting never discussed surgery with him.
From the decision · page 5Also of importance is applicant's credible and unrebutted testimony regarding whether he ever chose not to undergo surgery. Applicant clarified at trial that he was told by Dr. Haber that he would not pursue surgery at that time, but applicant did not decline surgery presumably because it was not recommended at the time. Furthermore, applicant testified at trial that he [n]ever had a discussion with Dr. Ting about surgery, and that Dr. Ting never brought up the issue of surgery with him. Applicant also stated at trial that he would undergo surgery if it was an option.
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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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