Applicant underwent a limb shortening surgery on October 15, 2019 resulting in removal of part of the left lower extremity.
Favours Applicant prevailed
This surgery qualified as an amputation under Labor Code section 4565(c)(3)(C), triggering the amputation exception to the 104 week cap on temporary disability indemnity.
From the decision · page 3On October 27, 2020, Steven Isono, M.D., the agreed medical evaluator (AME), issued a report
stating that on October 15, 2019, applicant underwent the placement of a revision intramedullary
tibial nail placed in a locking fashion along with an open reduction, internal fixation (ORIF)
utilizing two plates and screws for fixation along with the implantation of bone morphogenic
protein and that the surgery caused a shortening of applicant's left lower leg. (Exhibit 101, p. 3.)
Dr. Isono also stated that he required further information before he could discuss applicant's
disability status. (Id. at p. 11.)
Applicant's left leg was six centimeters shorter than the right after surgery.
Favours Applicant prevailed
The limb shortening was evidence of removal of part of a limb, supporting the amputation exception claim.
From the decision · page 4On February 8, 2021, applicant's primary treating physician, Scott Petersen, M.D., issued a report
stating that applicant was maximally medically improved. (Exhibit A1, p. 1.) Dr. Peterson also
stated that applicant "underwent surgery on 10/15/2019 due to hypertrophic nonunion left
proximal tibial shaft fracture with necrotic bone at the fracture site and gross mobility. This surgery
resulted in shortening of the left tibia and fibula." (Id. at p. 2.) Dr. Peterson's physical examination
revealed that applicant's left leg was six centimeters shorter than the right. (Id. at p. 3.) Dr. Petersen
described the last surgical procedure as a "limb shortening surgery." (Id. at p. 4.)
There was no evidence applicant was maximally medically improved before February 8, 2021.
Favours Applicant prevailed
This supported continuous temporary disability indemnity entitlement under the amputation exception.
From the decision · page 6I also recommend rejecting defendant's argument that applicant would not be entitled to receive
temporary total disability during the period between the exhaustion of the 104 weeks of temporary
disability indemnity and the date of the last surgery. My recommendation is based on the
evidentiary record and the plain language of section 4556(c)(3). (Renee J. v. Superior Court (2001)
26 Cal. 4th 735, 743 [When the language of a statute is clear, it is enforced according to its terms].)
Here, Dr. Isono stated that applicant was maximally medically improved on July 9, 2019, but he
retracted that finding upon review of CT scan, and thus, there is no evidence that applicant was
maximally medically improved during that time. (Joint Exhibit 101 at pp. 2-3.) Further, section
4656(c)(3)(C) only provides that an amputation entitled an injured employee to receive up to 240
weeks of temporary disability without consideration for when the amputation occurred. Therefore,
applicant's temporary disability should run continuously from December 19, 2016 until Dr.
Petersen determined that applicant became maximally medically improved on February 8, 2021.
Based upon the above, I recommend denial of defendant's Petition for Reconsideration.
Date: June 22, 2021