What the panel ordered
The Findings and Award of August 13, 2020 is rescinded, and the matter is returned to the trial level for further proceedings and a new decision by the WCJ.
The Appeals Board granted reconsideration and rescinded the Findings and Award of August 13, 2020, returning the matter to the trial level for further proceedings and a new decision by the WCJ.
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 issue of credit for unemployment benefits was not fully addressed at trial and requires further opportunity for the parties to address it in new proceedings.
From the decision · page 2Regarding the issue of credit for unemployment benefits paid by the State of Texas, we note that the issue was not specifically raised at trial on May 4, 2020, when the parties entered into what they apparently believed was a complete framing of the issues. In the interest of due process, we believe the parties should have further opportunity to fully address the issue of credit. (Gangwish v. Workers' Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284, 1295 [66
The WCJ's findings on temporary disability were rescinded due to lack of sufficient evidence and the failure of the QME to address the issue, requiring further proceedings and a new decision.
From the decision · page 2Here, based upon the statements in the WCJ's Report that there is a lack of evidence on the issue of temporary disability, and given Dr. Amster's failure to address it in any meaningful way, we conclude that the WCJ's decision must be rescinded, and that this case must be returned to the trial level for further proceedings and new decision by the WCJ. We take this action to provide Dr. Amster an opportunity to supplement his medical opinion by fully addressing the issue of temporary disability. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The Panel QME Dr. Amster never addressed periods of temporary disability and there were large gaps in the treatment records.
Favours Applicant prevailed
This lack of medical opinion and evidence led to the rescission of the WCJ's decision and remand for further proceedings.
From the decision · page 2We note that on page five of his Report, the WCJ states that before trial, he "specifically pointed out that the Panel QME Dr. Amster never addressed periods of temporary disability and that there were large gaps in the treatment records. Despite pointing this out, applicant's attorney indicated that they wished to proceed to trial."
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.
Did not address periods of temporary disability in any meaningful way, leading to the need for further medical opinion development.
The WCJ noted that Dr. Amster never addressed periods of temporary disability and there were large gaps in treatment records, necessitating further development of the medical record.
From the decision · page 2We note that on page five of his Report, the WCJ states that before trial, he "specifically pointed out that the Panel QME Dr. Amster never addressed periods of temporary disability and that there were large gaps in the treatment records. Despite pointing this out, applicant's attorney indicated that they wished to proceed to trial."
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 [66 Cal.Comp.Cases 1290]
The WCAB may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence.
Applied to require further evidence development on temporary disability issue.
From the decision · page 2To the extent the WCJ suggests applicant's attorney waived additional periods of temporary disability (if any) by insisting upon trial, we disagree. In fact, it is well-settled that the WCAB "may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence." (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1164 [66 Cal.Comp.Cases 1290].)
What proof carried it
The evidence the panel weighed, by kind.
Lack of evidence on the issue of temporary disability and failure of the QME to address it
From the decision · page 2Here, based upon the statements in the WCJ's Report that there is a lack of evidence on the issue of temporary disability, and given Dr. Amster's failure to address it in any meaningful way, we conclude that the WCJ's decision must be rescinded, and that this case must be returned to the trial level for further proceedings and new decision by the WCJ. We take this action to provide Dr. Amster an opportunity to supplement his medical opinion by fully addressing the issue of temporary disability. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 [Appeals Board en banc].)
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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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