What the panel ordered
Petition for Reconsideration denied, Findings and Award upheld.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on April 28, 2021, which found applicant temporarily totally disabled and entitled to temporary disability indemnity benefits.
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 substantial medical evidence from QME Dr. Holmes and PTP Dr. Stoller supports that applicant was temporarily totally disabled due to the December 21, 2019 injury during the awarded period, despite not having reached MMI status.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on April 28, 2021, wherein the WCJ found in pertinent part that applicant was temporarily totally disabled for the period from January 16, 2020, through November 26, 2020, and that he was entitled to temporary disability indemnity benefits for that period of time.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained an injury to his neck, back, and bilateral arms on December 21, 2019, accepted by defendant.
Favours Applicant prevailed
This established the industrial injury basis for temporary disability benefits.
From the decision · page 5It appears that all of defendant's arguments are based on its underlying premise that until applicant's cervical spine condition reaches MMI/permanent and stationary status, it cannot be determined whether the condition is an aggravation or an exacerbation of applicant's prior cervical spine injury. Review of the record indicates that in this matter (case number ADJ13407033), there is no dispute that on December 21, 2019, applicant sustained an injury AOE/COE to his neck, back, and bilateral arms. Defendant has accepted applicant's claim of injury to those body parts. In case number ADJ7096606 the parties previously stipulated that in 2008 applicant sustained injury to his neck and right shoulder.
QME Dr. Holmes diagnosed cervical, thoracic, and lumbar spine strain due to the December 21, 2019 injury and stated symptoms are due at least in part to the acute trauma.
Favours Applicant prevailed
Supported causation of injury and temporary total disability despite MMI not reached.
From the decision · page 5As noted above, QME Dr. Holmes diagnosed applicant as having a cervical, thoracic, and lumbar spine strain. (App. Exh. 15, p. 6.) At his deposition, Dr. Holmes testified that applicant sustained an injury to his cervical spine, thoracic spine, and lumbar spine on December 21, 2019. (Def. Exh. O, p. 21.) He then stated that until applicant reached MMI, he would not be able to determine whether the cervical spine injury was an exacerbation or an aggravation of the prior injury. (Def. Exh. O, pp. 22 -23.) Also, PTP Dr. Stoller stated that applicant could not work because of "the difficulties with movement of his neck, his upper back, and his lower back." (Def. Exh. P, p. 2.) He later explained that the L4-L5 level disc herniation was "consistent with an acute event and he developed the symptoms after this event on 12/21/19." (Def. Exh. P, p. 4.)
PTP Dr. Stoller stated applicant could not work due to pain and movement difficulties consistent with the December 21, 2019 injury.
Favours Applicant prevailed
Supported the finding of temporary total disability during the awarded period.
From the decision · page 5As noted above, QME Dr. Holmes diagnosed applicant as having a cervical, thoracic, and lumbar spine strain. (App. Exh. 15, p. 6.) At his deposition, Dr. Holmes testified that applicant sustained an injury to his cervical spine, thoracic spine, and lumbar spine on December 21, 2019. (Def. Exh. O, p. 21.) He then stated that until applicant reached MMI, he would not be able to determine whether the cervical spine injury was an exacerbation or an aggravation of the prior injury. (Def. Exh. O, pp. 22 -23.) Also, PTP Dr. Stoller stated that applicant could not work because of "the difficulties with movement of his neck, his upper back, and his lower back." (Def. Exh. P, p. 2.) He later explained that the L4-L5 level disc herniation was "consistent with an acute event and he developed the symptoms after this event on 12/21/19." (Def. Exh. P, p. 4.)
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.
Diagnosed cervical, thoracic, and lumbar spine strain due to the December 21, 2019 injury; stated symptoms are due at least in part to the acute trauma; could not determine apportionment or causation of disability until MMI.
Dr. Holmes' opinion was relied upon to establish causation of injury and temporary disability status despite MMI not being reached.
From the decision · page 3On May 12, 2020, QME Dr. Holmes evaluated applicant regarding the December 21, 2019 injury. (App. Exh. 15, Dr. Holmes, May 12, 2020.) Dr. Holmes examined applicant and took a history but was not provided medical records to review. The doctor noted that in 2009 applicant had a two-level cervical spine fusion surgery as a result of an industrial injury. (App. Exh. 15, p. 2.) He diagnosed applicant as having a cervical, thoracic, and lumbar spine strain, and stated:
Stated applicant could not work due to pain and movement difficulties in neck, upper back, and lower back; L4-L5 disc herniation consistent with acute event on December 21, 2019; supported total temporary disability from injury date through current time.
Dr. Stoller's opinion supported the finding of temporary total disability due to the December 21, 2019 injury.
From the decision · page 4In his permanent and stationary report, PTP Dr. Stoller stated: He cannot work currently due to the pain in his leg, the weakness in his right arm and hand, the difficulties with movement of his neck, his upper back, and his lower back. (Def. Exh. P, Dr. Stoller, November 30, 2020, p. 2.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
South Coast Framing v. WCAB (Clark) (2015) 80 Cal Comp Cases 489
Distinction between causation of injury and causation of disability for temporary disability benefits
Applied to determine that causation of injury is sufficient for temporary disability benefits even if MMI is not reached.
From the decision · page 9"Causation of injury" and "causation of disability" are different concepts with different standards of proof, and different medical legal analyses. See the California Supreme Court decision of South Coast Framing v. WCAB (Clark),) (2015) 80 Cal Comp Cases 489, of the distinction between these two concepts and how they are to be applied in the California Workers' Compensation system.
Granado v. WCAB (1968) 33 CCC 647
No apportionment to non-industrial causes for temporary disability or medical treatment
Applied to reject defendant's argument for apportionment affecting temporary disability benefits.
From the decision · page 10Granado v. WCAB, (1968) 33 CCC 647 was quite clear in discussing its rationale for not allowing "apportionment" to non-industrial causes with regard to either medical treatment or temporary disability. We will follow the holding in Granada, supra, in this case. IV. Applicant is Entitled to TTD from 1/16/2020 § 11/26/2020
What proof carried it
The evidence the panel weighed, by kind.
Credibility of medical opinions from Dr. Holmes and Dr. Stoller
From the decision · page 6Thus, the reports from Dr. Chen, Dr. Holmes, and Dr. Stoller are substantial evidence that applicant was temporarily totally disabled, as a result of the December 21, 2019 injury, during the period of time awarded by the WCJ. We see no factual or legal basis for disturbing the F&A.
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About this page
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