California WCABPanel decision

ADJ12212509 · December 20, 2021

Findings of Fact and Award of December 22, 2020 affirmed except amended to address the Employment Development Department lien on temporary disability benefits.

Issues decided: 2
Medical opinions weighed: 1
Authorities named: 3
District office: Sacramento

What the panel ordered

Findings of Fact and Award of December 22, 2020 affirmed except amended to address the Employment Development Department lien on temporary disability benefits.

Petition for Reconsideration granted to review the December 22, 2020 Findings and Award; decision after reconsideration issued affirming and amending the award.

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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.

AOE/COEApplicant prevailedneck

The WCJ found that applicant sustained injury to her neck arising out of and in the course of employment, supported by credible testimony and medical evidence.

From the decision · page 4The WCJ found that applicant sustained injury to her neck. She made additional findings as to average weekly wages, periods of temporary disability, occupational code and the need for further medical treatment.

AOE/COEApplicant prevailedback · arms · neck

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The facts that decided it

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

Applicant testified credibly about the injury mechanism involving a refrigerator door falling on her, causing injury to neck, back, and arms.

Favours Applicant prevailed

This credible testimony supported the WCJ's finding of injury to the neck and the overall award.

From the decision · page 3She went to the back of the trailer and there was an industrial cooler. She opened the door, and the door fell off on her and knocked her down. It took her 20 to 25 minutes to put the door back on. She held the door on her steel toe boot. She had the door in both arms and was trying to get the door back on the refrigerator so she could lock the latch. She was having difficulty getting the door back on the refrigerator. She was using her whole body weight because the door probably weighed more than her. She estimates the door weighed between 150 and 200 pounds. The refrigerator was very big. It is industrial and bigger than a household refrigerator...She opened the handle on the left to the refrigerator door to get the product and the cooler door fell off. There was supposed to be a hinge but there was no hinge. It had approximately three black straps on the side, but the door was still able to fall down. The door did not fall to the ground, but it still fell on her. There was no strap on the top of the cooler door. (September 16, 2020 MOH at 9:12-24.)

Defendant offered no witnesses or evidence to contradict applicant's testimony on the injury mechanism.

Favours Applicant prevailed

Lack of contradictory evidence reinforced the WCJ's credibility determination in favor of the applicant.

From the decision · page 5Next, defendant contends that applicant's testimony is controverted by the evidentiary record. It identifies alleged discrepancies in applicant's description of the mechanism of injury, and the length of time it took the applicant to replace the dislodged cooler door. (Petition at pp.7- 8.) However, the WCJ found applicant's testimony credible, and defendant offered no witnesses to testify and no other evidence to contradict applicant's description of the incident. (Opinion on Decision at p.6.) We have given the WCJ's credibility determination significant weight because the WCJ had the opportunity to listen to the witness' testimony and judge its veracity. (See Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].)

The Employment Development Department lien for benefits paid was deferred at trial but must be accounted for in the temporary disability award.

Favours Defendant prevailed

This required amendment of the award to address the EDD lien, affecting the final disposition of temporary disability benefits.

From the decision · page 7Finally, defendant observes that the lien of EDD for benefits paid to the applicant as unemployment and/or disability insurance has been deferred, and that the award of temporary disability benefits does not account for the EDD lien. The lien of EDD is a lien against compensation and is generally payable for the same day or days an award of temporary or permanent disability is otherwise payable. (Lab. Code, § 4903, subds. (f)-(g), 4904, subds. (a)- (b); State of California, Employment Development Dept. v. Workers' Compensation Appeals Bd. (Garcia) 61 Cal.App. 3d 470 [41 Cal.Comp.Cases 489].) The legislative intent of section 4904(b)(1) is to provide for a lien if duplicate compensation is paid for the same days of unemployment. (Garcia v. Industrial Accident Com. (1953) 41 Cal.2d 689 [18 Cal.Comp.Cases 290]; California Comp. Ins. Co. v. Ind. Acc. Com. (Moore) (1954) 128 Cal.App.2d 797 [19 Cal.Comp.Cases 249]; Department of Employment Dev. v. Workers' Comp. Appeals Bd. (Garcia) (1976) 61 Cal.App.3d 470 [41 Cal.Comp.Cases 489].) Accordingly, although the lien of EDD was deferred at trial, we concur with defendant that the award of temporary disability should consider the periods during which applicant received EDD benefits.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Hamilton v. Lockheed Corporation, 66 Cal. Comp. Cases 473 (2001, Appeals Bd. en banc)

The record must contain, in properly organized form, the minutes of hearing and summary of evidence (MOH) accurately reflecting the issues raised at trial.

The WCJ properly considered the issues raised at trial as reflected in the MOH and had jurisdiction to decide all issues presented.

From the decision · page 4In Hamilton v. Lockheed Corporation, 66 Cal. Comp. Cases 473 (2001, Appeals Bd. en banc)1 we observed:

California Labor Code section 5708

The WCJ has full power, jurisdiction and authority to hear and determine all issues of fact and law presented and to issue any orders necessary to adjudicate the case fully.

The WCJ exercised this authority to address all issues raised at trial, including injury to neck and temporary disability.

From the decision · page 5Here, the September 16, 2020 MOH lists 11 issues, including injury to applicant's neck (Issue 1) and mechanism of injury (Issue 10) and reflects no motion to limit the issues solely to "mechanism of injury." Additionally, the record contains no objection to the MOH that were served on the parties, and no subsequent request for amendment to include additional arguments advanced at trial by the defendant or any objection to the issues as framed for decision. Moreover, the WCJ is empowered to make inquiry "which is best calculated to ascertain the substantial rights of the parties, and carry out justly the spirit and provisions" of California workers' compensation law. (Cal. Lab. Code § 5708.)2 In furtherance of this mandate, the WCJ has "full power, jurisdiction and authority to hear and determine all issues of fact and law presented and to issue any interim, interlocutory and final orders, findings, decisions and awards as may be necessary to the full adjudication of the case." (Cal. Code Regs., tit. 8, former § 10348, now § 10330 (eff. Jan. 1, 2020)). Accordingly, we find no indication that defendant sought to limit the issues at trial, or that the WCJ erred in addressing the additional issues raised by the parties and memorialized in the MOH.

State of California, Employment Development Dept. v. Workers' Compensation Appeals Bd. (Garcia) 61 Cal.App. 3d 470

The Employment Development Department lien is payable for the same days an award of temporary or permanent disability is payable, to prevent duplicate compensation.

The award of temporary disability was amended to be subject to the EDD lien, with jurisdiction reserved for further dispute resolution.

From the decision · page 7Finally, defendant observes that the lien of EDD for benefits paid to the applicant as unemployment and/or disability insurance has been deferred, and that the award of temporary disability benefits does not account for the EDD lien. The lien of EDD is a lien against compensation and is generally payable for the same day or days an award of temporary or permanent disability is otherwise payable. (Lab. Code, § 4903, subds. (f)-(g), 4904, subds. (a)- (b); State of California, Employment Development Dept. v. Workers' Compensation Appeals Bd. (Garcia) 61 Cal.App. 3d 470 [41 Cal.Comp.Cases 489].) The legislative intent of section 4904(b)(1) is to provide for a lien if duplicate compensation is paid for the same days of unemployment. (Garcia v. Industrial Accident Com. (1953) 41 Cal.2d 689 [18 Cal.Comp.Cases 290]; California Comp. Ins. Co. v. Ind. Acc. Com. (Moore) (1954) 128 Cal.App.2d 797 [19 Cal.Comp.Cases 249]; Department of Employment Dev. v. Workers' Comp. Appeals Bd. (Garcia) (1976) 61 Cal.App.3d 470 [41 Cal.Comp.Cases 489].) Accordingly, although the lien of EDD was deferred at trial, we concur with defendant that the award of temporary disability should consider the periods during which applicant received EDD benefits.

ADJ12212509 · December 20, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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