ADJ12136545 · December 5, 2022

The WCJ found that the defendant did not meet its burden to rebut the hernia presumption because the expert did not show contemporaneous occurrence or sole cause of the hernia by the non-industrial gastric sleeve procedure.

From the decision · page 5Whether Defendant Rebutted the Hernia Presumption under Labor Code section 3212

The WCJ found the applicant was entitled to retroactive temporary total disability indemnity because her retirement was motivated by the industrial injury and the primary treating physician's report was credible and substantial evidence.

From the decision · page 6Whether Applicant is Entitled to Retroactive Temporary Total Disability Indemnity

Applicant credibly testified that her industrial injuries motivated her retirement, including pain and difficulty performing duties

Favours Applicant prevailed

This established that Applicant was willing to work and entitled to retroactive temporary total disability indemnity despite retirement

From the decision · page 6Here, the Applicant testified credibly and without rebuttal that her injuries were a factor in choosing to retire from the County of San Bernardino as a Sheriff Deputy. Specifically, she testified that her work became too painful, that she had difficulty sitting and standing, that the

Defendant did not prove contemporaneous occurrence or sole cause of hiatal hernia by non-industrial gastric sleeve procedure

Favours Applicant prevailed

This failure meant the hernia presumption under Labor Code section 3212 was not rebutted, favoring Applicant's claim for compensability and unapportioned award for GERD

From the decision · page 5Here, although Internal PQME Dr. Lineback provided a compelling anatomical picture as to how a hiatal hernia can develop after a gastric sleeve procedure given the increased propensity of the stomach prolapsing into the chest, the undersigned WCJ did not find this sufficient to rebut the hernia presumption. Specifically, Dr. Lineback did not explicitly state or explain that the gastric sleeve procedure and the development of the hiatal hernia occurred simultaneously. And the gap in time between the gastric sleeve in 2011 and the eventual diagnosis of the hiatal hernia in 2014 quite simply raised questions as to the timeline of events: Does a hiatal hernia develop immediately or over time after a gastric sleeve given that the procedure creates a scenario that increases the propensity of prolapse occurring? If the hiatal hernia developed at the same time the Applicant underwent the gastric sleeve, why was the hernia not diagnosed at the same time or sooner? Alternatively, if it is more likely that a hiatal hernia anatomically develops over the course of time post-gastric sleeve, are there other factors that may contribute to the development of the hernia? If

Defendant failed to provide evidence of a good faith dispute regarding retroactive temporary disability benefits

Favours Applicant prevailed

Lack of such evidence supported imposition of a 20% penalty under Labor Code section 5814 for unreasonable delay or refusal to pay benefits

From the decision · page 9However, Petitioner failed to offer any evidence, documentary or testimonial, which would demonstrate the existence of a "good faith dispute" that would cast genuine doubt as to its potential liability for retroactive disability at the time any such disability could have been reasonably been paid. If Petitioner disputed Dr. Li's capacity as the primary treating physician, a letter objecting to the same would have been reasonable. If Petitioner disputed Dr. Li's opinions regarding disability status or periods of disability, it would have been reasonable to see a notice of denial of temporary disability benefits or an objection letter of some sort, such as one contemplated under Labor Code section 4062. Petitioner failed to offer any evidence that would memorialize its good faith dispute as to any potential retroactive temporary disability. And it appears clear that the Petitioner and its counsel were in possession of Dr. Li's March 12, 2019 report as early as March 14, 2019 and May 20, 2019, respectively, as indicated by what appears to be the receipt stamps within the report.

Provided opinions regarding Applicant's internal-related complaints, including GERD, hypertensive heart disease, and hiatal hernia; opined that gastric sleeve procedure increased propensity for hiatal hernia but did not conclusively state contemporaneous occurrence or sole cause.

Did not explicitly state contemporaneous occurrence or sole cause of hiatal hernia by gastric sleeve procedure, leading to WCJ rejection of rebuttal attempt.

From the decision · page 5Whether Defendant Rebutted the Hernia Presumption under Labor Code section 3212

Provided opinions regarding Applicant's various orthopedic-related complaints.

From the decision · page 3Petitioner had initially denied this claim in its entirety on June 3, 2019. (Defendant's Exhibit A.) The parties subsequently participated in the QME Panel process, securing medical-legal reporting from Orthopedic Panel Qualified Medical Evaluator Dr. George Watkin and Internal Medicine Panel Qualified Medical Evaluator Dr. James Lineback. Dr. Watkin provided opinions regarding Applicant's various orthopedic-related complaints. Dr. Lineback provided opinions regarding Applicant's internal-related complaints, specifically the Applicant's GERD condition affecting the upper GI tract, hypertensive heart disease, and hiatal hernia. At some point, Defendant would

Certified Applicant as temporarily totally disabled after March 12, 2019 visit; report titled as Primary Treating Physician's Progress Report; managed care and treatment plan; opinions supported temporary total disability award.

Report was credible and substantial evidence; Dr. Li was found to be the primary treating physician at the relevant time despite defendant's challenge.

From the decision · page 7Next Petitioner argues that even if the Applicant is entitled to temporary disability after retirement, the court cannot rely upon the reporting from Dr. Jia Li, who certified the Applicant to be temporarily totally disabled after a March 12, 2019 visit. (Applicant's Exhibit 15.) Specifically, Petitioner contends that Dr. Li was never properly designated as the Applicant's primary treating physician. Petitioner further suggests that the Applicant had privately retained Dr. Li, and that opinions by a doctor privately obtained by the injured worker cannot be the sole basis of an Award in accordance with Valdez v. WCAB (2013) 57 Cal.4th 1231, a holding also codified in Labor Code section 4605. However, the record suggests that Dr. Li, or the facility he was associated with, was in fact the Applicant's primary treating physician at least at the time of the March 12, 2019 visit, and that the Applicant did not intend to privately retain Dr. Li's services of which she would pay at her own expense.

Labor Code section 5900-5903 grounds for Petition for Reconsideration

Petition for Reconsideration may be taken only from a final order, decision, or award on specified grounds

From the decision · page 4Under Labor Code section 5900(a), a Petition for Reconsideration may only be taken from a "final" order, decision, or award. A "final" order has been defined as one that either "determines any substantive right or liability of those involved in the case" (Rymer v. Hagler (1989) 211 Cal. App. 3d 1171, 1180) or determines a threshold issue that is fundamental to the claim for benefits (Maranian v. Workers' Comp. Appeal Bd. (2000) 81 Cal. App. 4th 1068, 1070.) Pursuant to Labor Code section 5903, any person aggrieved by any final order, decision, or award may petition for reconsideration upon one or more of the following grounds:

Gonzalez v. WCAB (1998) 63 Cal. Comp. Cases 1477

Gonzalez v. WCAB (1998) 63 Cal. Comp. Cases 1477 regarding temporary disability and retirement

If injury caused retirement for all purposes, worker is entitled to temporary disability

From the decision · page 6Determining whether an Applicant, who has retired from her employment, is entitled to temporary disability indemnity requires a factual inquiry as to the Applicant's willingness to work. (Gonzalez v. WCAB (1998) 63 Cal. Comp. Cases 1477.) If it was the Applicant's intention to retire from work for all purposes, then it cannot be said that she is willing to work, and therefore her earning capacity would be zero. (Ibid.) Alternatively, if the Applicant had intended to only retire from her particular employment at the time, then she may be entitled to temporary disability indemnity. (Ibid.)

Labor Code section 5814

Labor Code section 5814 penalty for unreasonable delay or refusal to pay benefits

Penalty applies if benefits are unreasonably delayed or refused without good faith dispute

From the decision · page 9Simply listing temporary disability as an issue for Trial more than three years after Dr. Li certified the Applicant as temporarily totally disabled cannot automatically eliminate any discussion as to whether benefits were unreasonably delayed or refused, especially in light of the Petitioner's duties under California Code of Regulations section 10109. Accordingly, the undersigned WCJ believes that Petitioner's conduct arose to the level of unreasonableness as contemplated under Labor Code section 5814 by failing to issue temporary disability indemnity and failing to provide any evidence showing that it had delayed benefits because of some legal, medical, or factual basis that raised genuine doubt as to its liability for the same.

City and County of San Francisco v. WCAB (Wiebe) (1978) 22 Cal.3d 103

Labor Code section 3212 hernia presumption and rebuttal requirements

Defendant must show contemporaneous nonindustrial sole cause to rebut hernia presumption

From the decision · page 5Whether Defendant Rebutted the Hernia Presumption under Labor Code section 3212

Valdez v. WCAB (2013) 57 Cal.4th 1231

Valdez v. WCAB (2013) 57 Cal.4th 1231 on primary treating physician designation

Privately retained doctor opinions cannot solely support award unless primary treating physician

From the decision · page 7Next Petitioner argues that even if the Applicant is entitled to temporary disability after retirement, the court cannot rely upon the reporting from Dr. Jia Li, who certified the Applicant to be temporarily totally disabled after a March 12, 2019 visit. (Applicant's Exhibit 15.) Specifically, Petitioner contends that Dr. Li was never properly designated as the Applicant's primary treating physician. Petitioner further suggests that the Applicant had privately retained Dr. Li, and that opinions by a doctor privately obtained by the injured worker cannot be the sole basis of an Award in accordance with Valdez v. WCAB (2013) 57 Cal.4th 1231, a holding also codified in Labor Code section 4605. However, the record suggests that Dr. Li, or the facility he was associated with, was in fact the Applicant's primary treating physician at least at the time of the March 12, 2019 visit, and that the Applicant did not intend to privately retain Dr. Li's services of which she would pay at her own expense.

California Code of Regulations section 9785 requirements for primary treating physician reports

Primary treating physician must use PR-2 form and manage care for injury

From the decision · page 7The identity of the primary treating physician is a question of fact. Most often the primary treating physician can be easily identified with some type of writing, typically prepared by the Applicant or through her counsel. However, in this case, the parties did not offer any such "4600 letter," and the parties could not stipulate to the identity of the Applicant's primary treating physician. However, Dr. Li held himself out as the Applicant's primary treating physician as to this cumulative trauma injury, at least at the time of the March 12, 2019 report. The report itself is titled "Primary Treating Physician's Progress Report (PR-2)," which is the required form that primary treating physicians are mandated to use pursuant to California Code of Regulations section 9785(f)(8). (Applicant's Exhibit 15.) The report further memorializes that the treatment was for Applicant's lumbar spine resulting from a cumulative trauma claimed through the present, evidencing treatment for this particular injury. (Ibid.) Dr.

Applicant's credible testimony that her injuries motivated her retirement, including pain and difficulty performing duties

From the decision · page 6Here, the Applicant testified credibly and without rebuttal that her injuries were a factor in choosing to retire from the County of San Bernardino as a Sheriff Deputy. Specifically, she testified that her work became too painful, that she had difficulty sitting and standing, that the

Lack of evidence from Defendant showing a good faith dispute regarding retroactive temporary disability benefits

From the decision · page 9However, Petitioner failed to offer any evidence, documentary or testimonial, which would demonstrate the existence of a "good faith dispute" that would cast genuine doubt as to its potential liability for retroactive disability at the time any such disability could have been reasonably been paid. If Petitioner disputed Dr. Li's capacity as the primary treating physician, a letter objecting to the same would have been reasonable. If Petitioner disputed Dr. Li's opinions regarding disability status or periods of disability, it would have been reasonable to see a notice of denial of temporary disability benefits or an objection letter of some sort, such as one contemplated under Labor Code section 4062. Petitioner failed to offer any evidence that would memorialize its good faith dispute as to any potential retroactive temporary disability. And it appears clear that the Petitioner and its counsel were in possession of Dr. Li's March 12, 2019 report as early as March 14, 2019 and May 20, 2019, respectively, as indicated by what appears to be the receipt stamps within the report.