ADJ10755478 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration denied by WCAB panel, adopting and incorporating WCJ report.

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 prevailedleft shoulder

The WCJ and WCAB found the applicant continued to be temporarily totally disabled (TTD) beyond the PQME's MMI finding based on the PTP's opinion and ongoing treatment, supported by medical reports and treatment approvals.

From the decision · page 3Applicant suffered an admitted injury to her left shoulder while employed during the period 10/24/2015 through 10/24/2016. She also alleged a derivative injury to the right shoulder, which is not before this court at this time. Although she initially treated with a Dr. Pomerantz at Central Coast Industrial Care, as pointed out by the Defense's Petition that information is not relevant to thecurrent issue. She subsequently began treatment with Dr. Behrman, an authorized PTP, after the PQME Dr. Lundeen, felt she needed additional treatment. As noted in the Petition, Dr. Behrman began treatment on 10/29/2018. Dr. Lundeen again evaluated the applicant on 5/8/2019, wherein he found her to be MMI. TTD was terminated on 5/27/2019, requesting credit for overpayment of the TTD after 5/8/2019.

The facts that decided it

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

Applicant continued to receive and benefit from authorized treatment after PQME's MMI finding on 5/8/2019.

Favours Applicant prevailed

This supported the finding that the applicant was not truly MMI and remained temporarily totally disabled.

From the decision · page 5To put it another way, when Dr. Lundeen examined the applicant on 5/8/2019 and rendered her MMI, that decision was made based on what appeared to be his opinion at that time that the applicant wanted to settle her case at that point and short of considering any surgery. Was she MMI on 5/8/2019? No, as discussed above, when considering all the medical reporting, the fact the applicant was still in a lot of pain and was in fact receiving ongoing treatment, the more prudent approach was to continue to render treatment, hopefully to avoid the surgery mentioned by both doctors. Dr. Brourman did not feel she was MMI for these reasons and felt she may recover short of a surgery. Therefore, he continued to treat her. In fact, the treatment after 5/8/2019, would have had to have been approved by U.R. and/or IMR. We can see from the various reports of Dr. Brourman that he gave the applicant injections for her trigger fingers, and platelet injections in the shoulder. He felt additional P.T. would help and after Dr. Lundeen confirmed his course of treatment, hoped that further P.T. would be authorized. There was no evidence that the continued treatment was ever disapproved, denied, or "exhausted" as the Petition states.

PQME Dr. Lundeen's MMI finding was based on the applicant's desire to settle and avoid surgery, not on medical stability.

Favours Applicant prevailed

This undermined the finality of the MMI finding and supported continued TTD.

From the decision · page 4In Dr. Lundeens later report of 4/9/2020 (Exhibit #F, marked as #G in Filenet) he didn't change his mind as to MMI but did reiterate: That on his exam of 5/8/2019 the applicant desired tomove forward with a settlement of her claim. (pg 1). Dr. Lundeen further reviewed the treatment rendered by Dr. Behrman up to that exam and again found it medically reasonable and appropriate for this patient's ongoing left shoulder pain condition. (pg 1). Dr. Lundeen reiterated in his Final Comments his opinion that the Patient had reached MMI status at his 5/8/2019 exam because her condition remained stable and essentially unchanged. In the next sentence he commented on Dr.Behrmans treatment after his 5/8/2019 exam and stated the patient had received all appropriate non-operative treatment up to that point in time and then again reiterated that the patient had madeit clear to him at the time of the 5/8/2019 exam that she was not interested in pursuing any surgery for the left shoulder.

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

Disagreed with PQME Dr. Lundeen's MMI finding; believed applicant was still TTD and needed additional treatment short of surgery.

The WCJ and WCAB relied on Dr. Behrman's opinion that the applicant was not MMI and continued to be TTD, supporting continued treatment and TTD benefits.

From the decision · page 3Dr. Behrman continued to be the applicant's PTP. Dr. Behrman's deposition was taken on 11/5/2019, wherein he clearly stated that he disagreed with Dr. Lundeens finding of MMI, as the applicant had not gotten any better and there was additional treatment he wanted to try short of an actual surgery, an arthroscopic subacromial decompression. (See Exhibit #5, EAMS I.D.#3325726711/5/2019 at page 8, line 22 page 9 line 5).

QMEPartially credited

Found applicant MMI on 5/8/2019 and confirmed treatment was reasonable and appropriate; noted applicant desired to settle and avoid surgery.

The WCJ and WCAB considered Dr. Lundeen's MMI finding but found it was based on the applicant's desire to settle and avoid surgery, thus not dispositive of MMI status.

From the decision · page 3Applicant suffered an admitted injury to her left shoulder while employed during the period 10/24/2015 through 10/24/2016. She also alleged a derivative injury to the right shoulder, which is not before this court at this time. Although she initially treated with a Dr. Pomerantz at Central Coast Industrial Care, as pointed out by the Defense's Petition that information is not relevant to thecurrent issue. She subsequently began treatment with Dr. Behrman, an authorized PTP, after the PQME Dr. Lundeen, felt she needed additional treatment. As noted in the Petition, Dr. Behrman began treatment on 10/29/2018. Dr. Lundeen again evaluated the applicant on 5/8/2019, wherein he found her to be MMI. TTD was terminated on 5/27/2019, requesting credit for overpayment of the TTD after 5/8/2019.

ADJ10755478 · April 26, 2021

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

What proof carried it

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