ADJ8364344 — California WCAB decision

ADJ8364344 · October 21, 2022

The Appeals Board granted defendant's Petition for Reconsideration, rescinded the October 5, 2021 Joint Findings, Award and Order, and substituted new findings and award reflecting the November 23, 2020 Findings of Fact except as to the issue of temporary disability credit, where the WCJ's October 5, 2021 findings were substituted. Defendant was not entitled to credit for temporary disability sums paid from February 20, 2014 to July 23, 2014. Permanent disability was found to be 25%, with indemnity and medical treatment awards granted.

Issues decided

Medical opinions weighed

Authorities named

District office

Los Angeles

What the panel ordered

Defendant filed a timely Petition for Reconsideration of the October 5, 2021 Joint Findings, Award and Order. The WCJ prepared a Report and Recommendation on the Petition, recommending denial. The Appeals Board granted reconsideration, rescinded the October 5, 2021 F&A, and issued a Decision After Reconsideration substituting new findings and award.

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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.

Temporary disabilityApplicant prevailedright shoulder · upper gastrointestinal system

The Appeals Board found that the February 20, 2014 Stipulation and Order was substantial evidence supporting the award of temporary disability and that defendant was not entitled to credit for temporary disability sums paid because defendant did not timely object under Labor Code section 4062 and did not reserve credit rights in the stipulation.

From the decision · page 8

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The parties entered into a stipulation on February 20, 2014, agreeing to temporary disability payments until MMI/P&S or employment.

Favours Applicant prevailed

The stipulation was found to be substantial evidence supporting the award of temporary disability and precluded defendant's claim for credit.

From the decision · page 5Here, applicant and defendant entered into a stipulation on February 20, 2014 to commence payment of temporary disability indemnity until such time as applicant was "MMI/P&S or employed." (February 20, 2014 Stipulation and Order.) Defendant now contends that evidence adduced subsequent to the stipulation provides a basis for the assertion of a credit that would defeat all or part of the stipulated temporary disability, and that because the stipulation was silent as to its credit rights, it did not relinquish them.

Defendant did not timely object to the temporary disability findings of the primary treating physician under Labor Code section 4062.

Favours Applicant prevailed

This precluded defendant's subsequent challenge to the temporary disability award.

From the decision · page 6Additionally, the WCJ observes that the record reflects no timely objection to the temporary disability findings of applicant's primary treating physician. (Report, at p. 8.) In J.C. Penney Co. v. Workers' Compensation Appeals Bd. (Edwards) (2009) 74 Cal.Comp.Cases 826, 831-832 [2009 Cal. Wrk. Comp. LEXIS 201], the dispute involved the time in which a party may lodge an objection under section 4062. The Court of Appeal observed that "[t]he evident purpose of the time limits in section 4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms." (Id. at 831.) Accordingly, where a party fails to raise a timely dispute to a medical determination governed by section 4062, "they may not attack that determination thereafter." (Id. at 832.) Here, as in Edwards, supra, the record reflects no timely objection to the temporary

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.

PTPRelied upon

Declared applicant permanent and stationary on July 7, 2014, supporting temporary disability until that date.

The WCJ relied on Dr. Pelton's contemporaneous reporting to find temporary disability from February 20, 2014 to July 7, 2014.

From the decision · page 3July 8, 2014 to July 23, 2014. (November 23, 2020 Finding and Award, Finding of Fact No. 4.) The WCJ relied on the contemporaneous reporting of primary treating physician Dr. Pelton to determine that applicant was entitled to temporary disability until being declared permanent and stationary on July 7, 2014. (Opinion on Decision, dated November 23, 2020, at p. 5.)

AMEPartially credited · orthopedic medicine

Did not identify any periods of temporary disability arising out of applicant's industrial injury.

The AME report was considered but did not override the stipulation and PTP findings.

From the decision · page 2The parties subsequently selected AMEs Steven Silbart, M.D., in orthopedic medicine, Burton Sobelman, D.D.S., in dentistry, and Jeffrey Hirsch, M.D., in internal medicine. However, none of the three AMEs identified any periods of temporary disability arising out of applicant's industrial injury. (Ex. BB, report of Steven Silbart, M.D., dated February 8, 2016, at p. 2; Ex. CC, report of Burton Sobelman, D.D.S., dated September 12, 2018, at p. 20; Ex. DD, report of Jeffrey Hirsch, M.D., dated June 20, 2017, at p. 20.)

AMEPartially credited · internal medicine

Did not identify any periods of temporary disability arising out of applicant's industrial injury.

The AME report was considered but did not override the stipulation and PTP findings.

From the decision · page 2The parties subsequently selected AMEs Steven Silbart, M.D., in orthopedic medicine, Burton Sobelman, D.D.S., in dentistry, and Jeffrey Hirsch, M.D., in internal medicine. However, none of the three AMEs identified any periods of temporary disability arising out of applicant's industrial injury. (Ex. BB, report of Steven Silbart, M.D., dated February 8, 2016, at p. 2; Ex. CC, report of Burton Sobelman, D.D.S., dated September 12, 2018, at p. 20; Ex. DD, report of Jeffrey Hirsch, M.D., dated June 20, 2017, at p. 20.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 4062

Labor Code section 4062 requires timely objection to medical determinations to preserve rights to dispute temporary disability.

Defendant did not timely object to the primary treating physician's findings, precluding later challenge.

From the decision · page 6Additionally, the WCJ observes that the record reflects no timely objection to the temporary disability findings of applicant's primary treating physician. (Report, at p. 8.) In J.C. Penney Co. v. Workers' Compensation Appeals Bd. (Edwards) (2009) 74 Cal.Comp.Cases 826, 831-832 [2009 Cal. Wrk. Comp. LEXIS 201], the dispute involved the time in which a party may lodge an objection under section 4062. The Court of Appeal observed that "[t]he evident purpose of the time limits in section 4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms." (Id. at 831.) Accordingly, where a party fails to raise a timely dispute to a medical determination governed by section 4062, "they may not attack that determination thereafter." (Id. at 832.) Here, as in Edwards, supra, the record reflects no timely objection to the temporary

Labor Code section 5907

Labor Code section 5907 grants the Appeals Board authority to affirm, rescind, alter, or amend orders upon reconsideration.

The Appeals Board exercised this authority to rescind the October 5, 2021 F&A and substitute new findings and award.

From the decision · page 7Upon the timely filing of a Petition for Reconsideration, section 5907 grants the Workers' Compensation Appeals Board the authority to "affirm, rescind, alter, or amend the order, decision, or award made and filed by the appeals board or the workers' compensation judge." (Lab. Code § 5907.) The grant of reconsideration has the effect of causing "the whole subject matter [to be] reopened for further consideration and determination" (Great Western Power Co. v. Industrial Acc. Com. (Savercool) (1923) 191 Cal. 724, 729 [10 I.A.C. 322]) and of "[throwing] the entire record open for review." (State Comp. Ins. Fund v. Industrial Acc. Com. (George) (1954) 125

ADJ8364344 · October 21, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

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