ADJ14201376 — California WCAB decision

ADJ14201376 · December 18, 2023

The September 29, 2023 Findings and Award and Order is affirmed except amended to defer issues of credit for overpayment of temporary disability and EDD's entitlement to reimbursement; matter returned to trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Oxnard

What the panel ordered

Petitions for Reconsideration by applicant and defendant granted; issues of credit for overpayment of temporary disability and EDD's entitlement to reimbursement deferred for further proceedings.

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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.

Temporary disabilityDeferredleft lower extremity · left foot

The issue of credit for overpayment of temporary disability was deferred for further development of the record due to questions about the timeliness of the Panel QME report and communications with EDD.

From the decision · page 2We are not persuaded that the record supports the allowance of a credit for overpayment of TD. The WCJ relies on the December 15, 2020 pain management panel qualified medical examination report of Lawrence Miller, M.D., to allow the credit. Dr. Miller found applicant to have reached maximum medical improvement. (Dr. Miller's 12/15/20 report, at p. 13, defendant's Exhibit D.) However, the signature page of Dr. Miller's December 15, 2020 report is undated, the attached proof of service is undated and unsigned, and what appears to be a facsimile stamp at the bottom of each page of the report states "12/31/2020 12:00:00 AM." Thus, there does not appear to be evidence that the report was transmitted prior to December 31, 2020. In addition, EDD began to pay benefits on January 8, 2021 (Minutes of Hearing and Summary of Evidence (MOH/SOE) 8/16/23, at p 3:9-11), presumably based on the certification of her treating physician.

The facts that decided it

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

Panel QME Dr. Miller's December 15, 2020 report found applicant permanent and stationary and not temporarily disabled beyond that date.

Favours Defendant prevailed

The WCJ relied on Dr. Miller's detailed and complete findings as substantial medical evidence to deny temporary disability beyond December 31, 2020.

From the decision · page 10In the case herein, the Panel QME Dr. Miller's findings were more detailed and complete, and thus constituted substantial medical evidence supporting that the applicant was not TTD beyond the P&S date of December 15, 2020. Dr. Kalve issued a formal Permanent and Stationary report on April 8, 2022, (Applicant's Exhibit 1) several months after finding that the applicant could return to her usual and customary duties in November of 2021, and did not address TTD at all. Thus, Dr. Kalve's findings do not constitute substantial medical evidence. Further, the applicant's testimony that she faced "obstacles," "was unable to obtain active treatment," and that her treatment was "unreasonably delayed," is not found to be credible based on the medical reports of Dr. Shalom and Dr. Kalve.

The signature page and proof of service for Dr. Miller's December 15, 2020 report were undated, with a facsimile stamp dated December 31, 2020, raising questions about timeliness of the report.

Favours Applicant prevailed

This raised doubt about the validity of the credit for overpayment of temporary disability, leading to deferral of the issue for further development.

From the decision · page 2We are not persuaded that the record supports the allowance of a credit for overpayment of TD. The WCJ relies on the December 15, 2020 pain management panel qualified medical examination report of Lawrence Miller, M.D., to allow the credit. Dr. Miller found applicant to have reached maximum medical improvement. (Dr. Miller's 12/15/20 report, at p. 13, defendant's Exhibit D.) However, the signature page of Dr. Miller's December 15, 2020 report is undated, the attached proof of service is undated and unsigned, and what appears to be a facsimile stamp at the bottom of each page of the report states "12/31/2020 12:00:00 AM." Thus, there does not appear to be evidence that the report was transmitted prior to December 31, 2020. In addition, EDD began to pay benefits on January 8, 2021 (Minutes of Hearing and Summary of Evidence (MOH/SOE) 8/16/23, at p 3:9-11), presumably based on the certification of her treating physician.

New information from EDD after trial and Findings, Award and Order indicated EDD was withdrawing its lien for benefits paid.

Favours Applicant prevailed

This led to deferral of the issue of EDD's entitlement to reimbursement for further proceedings.

From the decision · page 12judge. Accordingly, based on the limited information provided to this judge, it was found that EDD should be reimbursed. Given that the conversations and information provided by EDD to the defendant were after both the trial and when the "Findings, Award and Order" issued, it is recommended the reconsideration be granted, so that the undersigned can review same and issue an amended Findings and Award.

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.

QMERelied upon

Found applicant permanent and stationary as of December 15, 2020; condition chronic and requiring palliative treatment; did not find applicant temporarily disabled beyond that date.

The WCJ relied on Dr. Miller's detailed and complete findings as substantial medical evidence to deny temporary disability beyond December 31, 2020.

From the decision · page 10In the case herein, the Panel QME Dr. Miller's findings were more detailed and complete, and thus constituted substantial medical evidence supporting that the applicant was not TTD beyond the P&S date of December 15, 2020. Dr. Kalve issued a formal Permanent and Stationary report on April 8, 2022, (Applicant's Exhibit 1) several months after finding that the applicant could return to her usual and customary duties in November of 2021, and did not address TTD at all. Thus, Dr. Kalve's findings do not constitute substantial medical evidence. Further, the applicant's testimony that she faced "obstacles," "was unable to obtain active treatment," and that her treatment was "unreasonably delayed," is not found to be credible based on the medical reports of Dr. Shalom and Dr. Kalve.

PTPRejected

Found applicant temporarily disabled until November 15, 2021; disagreed with Dr. Miller's opinion on temporary disability status.

Applicant contended that Dr. Kalve's opinion supported entitlement to temporary disability through November 15, 2021, but the WCJ found her opinion not substantial medical evidence.

From the decision · page 10In the case herein, the Panel QME Dr. Miller's findings were more detailed and complete, and thus constituted substantial medical evidence supporting that the applicant was not TTD beyond the P&S date of December 15, 2020. Dr. Kalve issued a formal Permanent and Stationary report on April 8, 2022, (Applicant's Exhibit 1) several months after finding that the applicant could return to her usual and customary duties in November of 2021, and did not address TTD at all. Thus, Dr. Kalve's findings do not constitute substantial medical evidence. Further, the applicant's testimony that she faced "obstacles," "was unable to obtain active treatment," and that her treatment was "unreasonably delayed," is not found to be credible based on the medical reports of Dr. Shalom and Dr. Kalve.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Defendant prevailed

Applicant's testimony of treatment delays and obstacles in obtaining care

From the decision · page 10In the case herein, the Panel QME Dr. Miller's findings were more detailed and complete, and thus constituted substantial medical evidence supporting that the applicant was not TTD beyond the P&S date of December 15, 2020. Dr. Kalve issued a formal Permanent and Stationary report on April 8, 2022, (Applicant's Exhibit 1) several months after finding that the applicant could return to her usual and customary duties in November of 2021, and did not address TTD at all. Thus, Dr. Kalve's findings do not constitute substantial medical evidence. Further, the applicant's testimony that she faced "obstacles," "was unable to obtain active treatment," and that her treatment was "unreasonably delayed," is not found to be credible based on the medical reports of Dr. Shalom and Dr. Kalve.

Documentary evidencefavours Applicant prevailed

Undated signature page and proof of service for Dr. Miller's December 15, 2020 report; facsimile stamp dated December 31, 2020

From the decision · page 2We are not persuaded that the record supports the allowance of a credit for overpayment of TD. The WCJ relies on the December 15, 2020 pain management panel qualified medical examination report of Lawrence Miller, M.D., to allow the credit. Dr. Miller found applicant to have reached maximum medical improvement. (Dr. Miller's 12/15/20 report, at p. 13, defendant's Exhibit D.) However, the signature page of Dr. Miller's December 15, 2020 report is undated, the attached proof of service is undated and unsigned, and what appears to be a facsimile stamp at the bottom of each page of the report states "12/31/2020 12:00:00 AM." Thus, there does not appear to be evidence that the report was transmitted prior to December 31, 2020. In addition, EDD began to pay benefits on January 8, 2021 (Minutes of Hearing and Summary of Evidence (MOH/SOE) 8/16/23, at p 3:9-11), presumably based on the certification of her treating physician.

ADJ14201376 · December 18, 2023

What the panel ordered

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The facts that decided it

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