What the panel ordered
The September 16, 2020 Amended Findings and Order is affirmed except that the issue of credit against future temporary disability indemnity payments is deferred for further development of the record.
Petition for Removal seeking removal of the matter to the WCAB from the September 16, 2020 Amended Findings and Order; treated as a petition for reconsideration because the F&O determined a substantive right and is a final order.
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 award of temporary partial disability from April 25, 2019 to January 30, 2020 is supported by substantial medical evidence including unchallenged QME reports and credible applicant testimony.
From the decision · page 4Accordingly, we agree with the WCJ's determination that based on the unchallenged reporting of the QME, as well as applicant's credible testimony, applicant was temporarily partially disabled from April 25, 2019 to January 30, 2020. (Finding of Fact No. 2.)
The issue of credit against future temporary disability indemnity payments is deferred pending further development of the record due to potential error in calculation and need for recalculation.
From the decision · page 4The WCJ's Report observes that there may be error in the calculation of the defendant's credit for temporary partial disability, and requests that we return the matter to the trial level for consideration of whether there is good cause to set aside the credit determination. (Report, at p. 9.) We also observe that the WCJ has deferred the issue of the amounts owed during the period of temporary partial disability. (Finding of Fact No. 4.) Given the potential need to recalculate the amount of the credit, coupled with the need for development of the record on the issue of the monetary indemnity owed, we will amend Finding of Fact No. 3, which fixes defendant's credit rights, to defer the issue pending development of the record.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The QME's unchallenged medical reports and applicant's credible testimony support the award of temporary partial disability from April 25, 2019 to January 30, 2020.
Favours Applicant prevailed
These facts provide substantial medical evidence for the WCJ's determination of temporary partial disability.
From the decision · page 4Accordingly, we agree with the WCJ's determination that based on the unchallenged reporting of the QME, as well as applicant's credible testimony, applicant was temporarily partially disabled from April 25, 2019 to January 30, 2020. (Finding of Fact No. 2.)
There may be an error in the calculation of defendant's credit for temporary partial disability, requiring further record development and recalculation.
Favours Defendant prevailed
This fact led to deferral of the credit issue pending further development of the record.
From the decision · page 4The WCJ's Report observes that there may be error in the calculation of the defendant's credit for temporary partial disability, and requests that we return the matter to the trial level for consideration of whether there is good cause to set aside the credit determination. (Report, at p. 9.) We also observe that the WCJ has deferred the issue of the amounts owed during the period of temporary partial disability. (Finding of Fact No. 4.) Given the potential need to recalculate the amount of the credit, coupled with the need for development of the record on the issue of the monetary indemnity owed, we will amend Finding of Fact No. 3, which fixes defendant's credit rights, to defer the issue pending development of the record.
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 had not reached maximum medical improvement and continued to experience symptoms consistent with post-concussion syndrome, supporting temporary partial disability from date of injury to January 30, 2020.
The QME's unchallenged reports support the award of temporary partial disability from April 25, 2019 to January 30, 2020.
From the decision · page 4The February 28, 2020 report of neurology QME Dr. Nick determined that applicant had not yet reached maximum medical improvement, and that applicant continued to experience headache, dizziness, and cognitive impairment resulting from the May 25, 2018 injury. (Ex. 1, Report of Saeed T. Nick, M.D., February 28, 2020, at p. 66.) The report identified work restrictions of no lifting greater than 25 pounds, no overhead work, no working in heights or climbing, with orthopedic restrictions deferred to the appropriate specialists. (Ibid.) Dr. Nick noted that applicant's symptoms were consistent with post-concussion syndrome, and that applicant's symptoms had not improved significant since the crash. (Id. at p. 65.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4909
Labor Code section 4909
Defendant's right to discretionary credit for temporary disability overpayment is governed by Labor Code section 4909.
From the decision · page 3Here, defendant's Petition seeks removal of the matter to the WCAB. However, the F&O determines a substantive right of the parties, i.e., defendant's right to a discretionary credit pursuant to Labor Code section 4909, and further determines applicant's earning capacity, and is thus a final order. We will treat the Petition as one seeking reconsideration, accordingly. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075 [65 Cal.Comp.Cases 650].)
What proof carried it
The evidence the panel weighed, by kind.
unchallenged QME reports and credible applicant testimony
From the decision · page 4Accordingly, we agree with the WCJ's determination that based on the unchallenged reporting of the QME, as well as applicant's credible testimony, applicant was temporarily partially disabled from April 25, 2019 to January 30, 2020. (Finding of Fact No. 2.)
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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.
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