ADJ11914002 · April 22, 2022

The WCJ and WCAB found no due process violation in proceeding with the expedited hearing without the supplemental AME report, balancing the applicant's prejudice from delay against defendant's discovery rights, and noting defendant's ongoing right to challenge the AME findings through timely discovery.

From the decision · page 4The parties appeared at an expedited hearing on August 11, 2021. Defendant objected to the matter proceeding, contending "it would be prejudicial to proceed without having a final medical opinion from AME Dr. Campbell regarding causation and would also be a due process violation to proceed at this time." (August 11, 2021 Minutes of Hearing and Summary of Evidence

The WCJ found applicant entitled to temporary disability indemnity benefits from October 25, 2018 to October 22, 2020, limited to 104 weeks under Labor Code section 4656(c)(2), based on substantial medical evidence including unrebutted AME and treating physician reports.

From the decision · page 5The WCJ issued the F&A on October 5, 2021, finding that applicant sustained injury arising out of and in the course of employment (AOE/COE) on October 17, 2018. The F&A awarded temporary disability from October 25, 2018 through October 22, 2020, less reimbursement to the EDD for October 25, 2018 through October 23, 2019, less attorney fees. (F&A, Findings of Fact No. 4; Award, p.2.) In her Opinion on Decision, the WCJ reviewed the relevant medical record, including the unrebutted opinions of AME Dr. Campbell and treating physicians Dr. Barber and Dr. Smolins. Based on these reports and the aggregate medical record, the WCJ found applicant to be temporarily totally disabled from October 18, 2018 through February, 19, 2021, but also noted the limitations of Labor Code section 4656(c)(2) of TTD benefits to 104 weeks.1 The period of compensable TTD was thus fixed as October 25, 2018 through October 22, 2020, less overlapping periods of EDD payments, less attorney fees. (F&A, Opinion on Decision, at pp.8-9.)

Applicant sustained industrial injury to the lumbar spine on October 17, 2018, supported by unrebutted AME and QME medical opinions and applicant's credible testimony.

Favours Applicant prevailed

This fact established the basis for entitlement to temporary disability indemnity benefits.

From the decision · page 7Notwithstanding the parties' trial stipulation, industrial injury is also supported in the evidentiary record. Applicant described the injury as occurring when she "rotated her torso to the right to ensure all passengers had exited the bus when she felt immediate onset of pain, stiffness and spasm through the low back with radiating complaints down the right leg." (Ex. DD, report of Agreed Medical Evaluator William Campbell, D.O., dated July 24, 2020, p.3.) AME Dr. Campbell first evaluated the applicant on July 24, 2020, conducted a thorough clinical examination, and prepared a comprehensive review of the submitted medical record.2 The report concludes:

Defendant accepted liability for the injury but delayed payment of temporary disability benefits pending receipt of EDD lien and medical records, causing prejudice to applicant.

Favours Applicant prevailed

This delay justified the WCJ's decision to proceed with expedited hearing and award TTD benefits despite defendant's objections.

From the decision · page 9Here, defendant initially denied liability for the October 17, 2018 injury and paid no benefits. (Answer to Application for Adjudication, dated March 21, 2019, p.2.) EDD provided state disability benefits from October 25, 2018 through October 23, 2019. (August 11, 2021 Minutes, at 2:32.) Following compensable reporting from QME Dr. Lo, and AME Dr. Campbell, defendant notified applicant that it was accepting liability for the claim on September 9, 2020, but would not pay temporary disability benefits, stating "we cannot pay you temporary disability at this time pending receipt of EDD final lien and complete medical records form [sic] your treating physician Dr. Barber." (Ex. 1, letter from San Mateo County Transit District to the applicant dated September 9, 2020.) Defendant issued a similar notice admitting injury but declining to pay TTD indemnity on December 3, 2020. (Ex. 2, letter from San Mateo County Transit District to the applicant dated December 3, 2020.) On February 19, 2021 AME Dr.

Defendant requested supplemental AME report on causation but did not specify TTD issues; WCJ found no due process violation in proceeding without the report, balancing interests.

Favours Defendant prevailed

This supported denial of defendant's Petition for Reconsideration and affirmed the hearing's validity.

From the decision · page 4The parties appeared at an expedited hearing on August 11, 2021. Defendant objected to the matter proceeding, contending "it would be prejudicial to proceed without having a final medical opinion from AME Dr. Campbell regarding causation and would also be a due process violation to proceed at this time." (August 11, 2021 Minutes of Hearing and Summary of Evidence

Applicant's need for treatment, periods of temporary disability, current symptoms and level of permanent disability with regard to the low back should be accepted as meeting AOE/COE criteria and of industrial origin relative to DOI 10/17/18.

Based on thorough clinical examination, review of medical records, and reasonable medical probability.

From the decision · page 3On July 24, 2020, AME William Campbell, D.O. evaluated applicant in orthopedics. After noting applicant's medical history and clinical examination findings, Dr. Campbell opined that "[i]t is my opinion, the patient's need for treatment, periods of temporary disability, current symptoms and level of permanent disability with regard to the low back should be accepted as meeting AOE/COE criteria and of industrial origin relative to DOI 10/17/18." (Ex. DD, Report of AME William Campbell, D.O., dated July 24, 2020, p.17.)

More likely than not that applicant developed painful symptoms in the lumbar spine as a result of work-related exposure and employment.

Based on clinical evaluation and medical record review.

From the decision · page 72 Although not offered into evidence by the parties, AME Dr. Campbell also reviewed a report dated September 23, 2019 by Qualified Medical Examiner Timothy Lo, M.D., who reviewed the medical record, performed a clinical evaluation, and concluded that, "it is more likely than not that [applicant] developed painful symptoms in the lumbar spine as a result of her work-related exposure and employment." (Ex. DD, report of Agreed Medical Evaluator William Campbell, D.O., dated July 24, 2020, p.14.)

Noted lumbar pain with right lower extremity radiculopathy and work restrictions including lifting limited to 15 pounds and ability to change position every 30 minutes.

Based on clinical findings and treatment notes.

From the decision · page 2On October 18, 2018, applicant sought medical treatment with Keith Wiley, M.D., who diagnosed an acute thoracic myofascial strain, and took applicant off work through October 25, 2018. (Ex. DD, Report of AME William Campbell, D.O., dated July 24, 2020, p.7.) On October 26, 2018, applicant was re-evaluated by Sonny Young, M.D., who noted no improvement in back and neck pain, and pending requests for diagnostic MRI testing. Dr. Young released applicant to return to work with modified duties, including no driving or operating heavy equipment. (Ibid.) On November 12, 2018, applicant consulted with Victoria Barber, M.D., who noted that radiographs were negative for fracture, but that MRI studies had not yet been authorized. Dr. Barber noted straight leg raise testing was positive on the right, and assessed lumbar pain with right lower extremity radiculopathy, rule out lumbar disc disease. (Id. at pp.7-8.)

Prescribed multiple treatment modalities and work restrictions including ability to sit and stand as needed; confirmed ongoing treatment through February 2021.

Based on treatment reports and clinical notes.

From the decision · page 3Thereafter, applicant transferred her care to primary treating physician David Smolins, M.D. In a report of October 22, 2020, Dr. Smolins requested a repeat lumbar spine MRI, prescribed multiple treatment modalities including medication, physical therapy and weight loss, and described work restrictions including the ability to sit and stand as needed. (Ex. 4, report from David Smolins, M.D., dated October 22, 2020.) These work restrictions were reiterated through applicant's subsequent treatment with Dr. Smolins though February, 2021. (See Exs. 5 through 8, reporting of PTP David Smolins, M.D., various dates through February 4, 2021.)

California Labor Code

Labor Code section 4656(c)(2)

Limits temporary disability indemnity benefits to 104 weeks.

From the decision · page 86-8.) Based on the contemporaneous medical reporting, the WCJ concluded that applicant was temporarily disabled from October 18, 2018 through February 19, 2021, but that pursuant to section 4656(c)(2), any award of TTD would be limited to 104 weeks. Accordingly, the WCJ identified the appropriate period of TTD as October 25, 2018 to October 22, 2020. (F&A, Opinion on Decision, p.8.) We note that the WCJ's analysis of the periods of disability is not challenged in defendant's Petition, and we discern no good cause to disturb the WCJ's sound reasoning regarding the basis and periods of temporary disability to which applicant is entitled.

Power v. Workers' Comp. Appeals Bd.

Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775

AME opinion should ordinarily be followed unless unpersuasive; due process considerations in trial timing.

From the decision · page 8expertise and neutrality, and the AME's opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive. (Power v. Workers' Comp. Appeals Bd. (1986) 179 Cal. App. 3d 775, 782 [51 Cal.Comp.Cases 114].) The opinion of AME Dr. Campbell is unrebutted, is framed in terms of reasonable medical probability, is based on pertinent facts and on an adequate examination and history, and clearly sets forth the reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 611 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc).) We conclude therefore that the reporting of AME Dr. Campbell provides substantial evidence that applicant sustained injury AOE/COE.

Applicant's testimony describing injury mechanism and symptoms.

From the decision · page 7Notwithstanding the parties' trial stipulation, industrial injury is also supported in the evidentiary record. Applicant described the injury as occurring when she "rotated her torso to the right to ensure all passengers had exited the bus when she felt immediate onset of pain, stiffness and spasm through the low back with radiating complaints down the right leg." (Ex. DD, report of Agreed Medical Evaluator William Campbell, D.O., dated July 24, 2020, p.3.) AME Dr. Campbell first evaluated the applicant on July 24, 2020, conducted a thorough clinical examination, and prepared a comprehensive review of the submitted medical record.2 The report concludes:

Unrebutted medical opinions of AME Dr. Campbell and QME Dr. Lo supporting industrial injury and temporary disability.

From the decision · page 7Notwithstanding the parties' trial stipulation, industrial injury is also supported in the evidentiary record. Applicant described the injury as occurring when she "rotated her torso to the right to ensure all passengers had exited the bus when she felt immediate onset of pain, stiffness and spasm through the low back with radiating complaints down the right leg." (Ex. DD, report of Agreed Medical Evaluator William Campbell, D.O., dated July 24, 2020, p.3.) AME Dr. Campbell first evaluated the applicant on July 24, 2020, conducted a thorough clinical examination, and prepared a comprehensive review of the submitted medical record.2 The report concludes:

Defendant's delay in paying temporary disability benefits despite accepting liability.

From the decision · page 9Here, defendant initially denied liability for the October 17, 2018 injury and paid no benefits. (Answer to Application for Adjudication, dated March 21, 2019, p.2.) EDD provided state disability benefits from October 25, 2018 through October 23, 2019. (August 11, 2021 Minutes, at 2:32.) Following compensable reporting from QME Dr. Lo, and AME Dr. Campbell, defendant notified applicant that it was accepting liability for the claim on September 9, 2020, but would not pay temporary disability benefits, stating "we cannot pay you temporary disability at this time pending receipt of EDD final lien and complete medical records form [sic] your treating physician Dr. Barber." (Ex. 1, letter from San Mateo County Transit District to the applicant dated September 9, 2020.) Defendant issued a similar notice admitting injury but declining to pay TTD indemnity on December 3, 2020. (Ex. 2, letter from San Mateo County Transit District to the applicant dated December 3, 2020.) On February 19, 2021 AME Dr.