What the panel ordered
Original Findings and Award rescinded; new Findings and Award issued granting concurrent section 4850 benefits for injuries to cervical and lumbar spine from July 18, 2018 to July 18, 2019, followed by temporary total disability benefits thereafter
Petition for Reconsideration granted; original Findings and Award rescinded and substituted with new Findings and Award
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 Board found that the applicant's cervical and lumbar spine injuries caused overlapping periods of temporary total disability, entitling her to concurrent section 4850 benefits from July 18, 2018 to March 18, 2019, and one year of section 4850 benefits from July 18, 2018, followed by temporary total disability benefits thereafter.
From the decision · page 10Based on the opinions and deposition testimony of both AME Dr. Silverman and PTP Dr. Chon, we are persuaded that applicant's December 5, 2017 and January 3, 2018 injuries each resulted in a period of temporary total disability and corresponding entitlement to section 4850 benefits beginning July 18, 2018, and running through the date of applicant's cervical spine surgery on March 18, 2019. Because both injuries caused overlapping periods of temporary total disability, applicant's entitlement to section 4850 benefits would end one year from the initial start date of July 18, 2018. (Foster, supra, 161 Cal.App.4th 1505.) Following the expiration of the one year of section 4850 benefits on July 18, 2019, applicant would thereafter be entitled to ongoing temporary total disability for the December 5, 2017 injury to the neck through the earlier of the permanent and stationary date or the expiration of an additional 52 weeks of temporary total disability. (Lab. Code, § 4656(c)(2).)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's cervical and lumbar spine injuries caused overlapping periods of temporary total disability from July 18, 2018 to March 18, 2019.
Favours Applicant prevailed
This fact supports concurrent entitlement to section 4850 benefits for both injuries during this period.
From the decision · page 10Based on the opinions and deposition testimony of both AME Dr. Silverman and PTP Dr. Chon, we are persuaded that applicant's December 5, 2017 and January 3, 2018 injuries each resulted in a period of temporary total disability and corresponding entitlement to section 4850 benefits beginning July 18, 2018, and running through the date of applicant's cervical spine surgery on March 18, 2019. Because both injuries caused overlapping periods of temporary total disability, applicant's entitlement to section 4850 benefits would end one year from the initial start date of July 18, 2018. (Foster, supra, 161 Cal.App.4th 1505.) Following the expiration of the one year of section 4850 benefits on July 18, 2019, applicant would thereafter be entitled to ongoing temporary total disability for the December 5, 2017 injury to the neck through the earlier of the permanent and stationary date or the expiration of an additional 52 weeks of temporary total disability. (Lab. Code, § 4656(c)(2).)
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.
Applicant's light duty restrictions from July 2018 were necessary due to both cervical and lumbar spine diagnoses; applicant was a cervical spine surgery candidate from June 1, 2018; complaints included both cervical and lumbar spine discomfort and limitations.
Supports concurrent temporary total disability for cervical and lumbar injuries from July 18, 2018 to March 18, 2019.
From the decision · page 10We also note that Dr. Silverman has opined that all periods of temporary partial and temporary total disability identified by the PTP are medically appropriate and necessary. (Ex. X, Report of Mitchell Silverman, M.D., dated March 26, 2020, at p. 9.) And in this respect, the testimony of Dr. Chon is germane. In his deposition of December 18, 2020, the PTP agreed that applicant was a cervical spine surgery candidate from the time of his initial evaluation on June 1, 2018. (Ex. N, Transcript of the Deposition Jae Chon, M.D., dated December 18, 2020, at p. 12:23.) Dr. Chon further confirmed that applicant's complaints in June, 2018 included both cervical and lumbar spine discomfort and limitations, and that the corresponding work restrictions provided by the PTP were "probably equally applicable" to both the lumbar and cervical spine injuries, notwithstanding the physician's primary concern at the time with respect to applicant's cervical spine condition. (Id. at p. 15:16.) Dr. Chon further opined that with respect to his July, 2018 reporting, applicant's light duty restrictions were necessary as a result of both applicant's cervical and lumbar spine diagnoses. (Id. at p. 19:24.)
Confirmed industrial causation of neck injury on December 5, 2017 and lumbar spine injury on January 3, 2018; opined that cervical spine work restrictions overlapped with lumbar spine restrictions; all periods of temporary disability were medically appropriate and necessary.
Supports concurrent temporary total disability for cervical and lumbar injuries from July 18, 2018 to March 18, 2019.
From the decision · page 9In this respect, we observe that AME Dr. Silverman has testified that applicant's cervical spine work restrictions would have been operative simultaneously with her low back restrictions.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4850
Labor Code section 4850 provides salary continuation benefits for certain public safety employees for up to one year of disability.
The Board applied this to determine the period of salary continuation benefits for the applicant.
From the decision · page 7Section 4850 provides that certain public safety employees may receive their full salary "in lieu of temporary disability payments... for the period of the disability, but not exceeding one year...." Salary continuation payments provided in section 4850 constitute aggregate disability payments that are subject to the 104-week limit in section 4656(c)(2). (County of Alameda v. Workers' Comp. Appeals Bd. (Knittel) (2013) 213 Cal.App.4th 278 [78 Cal.Comp.Cases 81].)
Labor Code section 4656(c)(2)
Labor Code section 4656(c)(2) limits aggregate disability payments to 104 weeks within two years.
The Board applied this to limit the total period of temporary disability benefits.
From the decision · page 7Section 4850 provides that certain public safety employees may receive their full salary "in lieu of temporary disability payments... for the period of the disability, but not exceeding one year...." Salary continuation payments provided in section 4850 constitute aggregate disability payments that are subject to the 104-week limit in section 4656(c)(2). (County of Alameda v. Workers' Comp. Appeals Bd. (Knittel) (2013) 213 Cal.App.4th 278 [78 Cal.Comp.Cases 81].)
County of Alameda v. Workers' Comp. Appeals Bd. (Knittel) (2013) 213 Cal.App.4th 278
When separate injuries result in concurrent periods of temporary disability, the 104-week limitation runs concurrently, not cumulatively.
The Board applied this to determine that overlapping temporary disability periods count as one period for benefit limits.
From the decision · page 7Section 4850 provides that certain public safety employees may receive their full salary "in lieu of temporary disability payments... for the period of the disability, but not exceeding one year...." Salary continuation payments provided in section 4850 constitute aggregate disability payments that are subject to the 104-week limit in section 4656(c)(2). (County of Alameda v. Workers' Comp. Appeals Bd. (Knittel) (2013) 213 Cal.App.4th 278 [78 Cal.Comp.Cases 81].)
City of Montclair v. Workers' Comp. Appeals Bd. (Leone) (2001) 66 Cal.Comp.Cases 899
The evidence must be examined to determine whether periods of temporary disability are distinct, staggered, or overlapping to apply section 4656 limits.
The Board applied this to analyze the nature of the temporary disability periods.
From the decision · page 8Where separate injuries result in concurrent periods of temporary disability, the 104-week/two-year limitation likewise runs concurrently. To determine the impact of section 4656, in a case involving multiple injuries, the evidence needs to be examined to determine whether any periods of temporary disability are distinct and independent, staggered, or entirely overlapping. (Cf. City of Montclair v. Workers' Comp. Appeals Bd. (Leone) (2001) 66 Cal.Comp.Cases 899, writ denied; City of Lompoc v. Workers' Comp. Appeals Bd. (Coday) (1984) 49 Cal.Comp.Cases 248, writ denied (entitlement to multiple periods of section 4850 benefits for separate periods of temporary disability due to separate injuries).) If there is total overlap, the applicant will be entitled to only one period of temporary disability indemnity consisting of 104 weeks within two years of the first payment. If separate periods of temporary disability are not completely overlapping, the applicant may be entitled to additional temporary disability indemnity; however, the applicant is not entitled to double recovery for overlapping periods.
City of Lompoc v. Workers' Comp. Appeals Bd. (Coday) (1984) 49 Cal.Comp.Cases 248
Entitlement to multiple periods of section 4850 benefits is possible for separate injuries with separate periods of temporary disability.
The Board applied this to support concurrent section 4850 benefits for separate injuries.
From the decision · page 8Where separate injuries result in concurrent periods of temporary disability, the 104-week/two-year limitation likewise runs concurrently. To determine the impact of section 4656, in a case involving multiple injuries, the evidence needs to be examined to determine whether any periods of temporary disability are distinct and independent, staggered, or entirely overlapping. (Cf. City of Montclair v. Workers' Comp. Appeals Bd. (Leone) (2001) 66 Cal.Comp.Cases 899, writ denied; City of Lompoc v. Workers' Comp. Appeals Bd. (Coday) (1984) 49 Cal.Comp.Cases 248, writ denied (entitlement to multiple periods of section 4850 benefits for separate periods of temporary disability due to separate injuries).) If there is total overlap, the applicant will be entitled to only one period of temporary disability indemnity consisting of 104 weeks within two years of the first payment. If separate periods of temporary disability are not completely overlapping, the applicant may be entitled to additional temporary disability indemnity; however, the applicant is not entitled to double recovery for overlapping periods.
What proof carried it
The evidence the panel weighed, by kind.
Deposition testimony of Dr. Silverman and Dr. Chon supporting concurrent work restrictions and temporary total disability for both cervical and lumbar injuries
From the decision · page 9In this respect, we observe that AME Dr. Silverman has testified that applicant's cervical spine work restrictions would have been operative simultaneously with her low back restrictions.
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