What the panel ordered
The WCAB granted reconsideration, amended the WCJ's decision to defer issues of temporary disability, EDD lien, permanent disability, attorney's fees, and date of injury for further proceedings.
Defendant sought reconsideration of the WCJ's Findings & Award & Order of April 16, 2025, challenging temporary disability award exceeding 104 weeks and attorney's fees issues; WCAB granted reconsideration and amended the decision to defer key issues for further development.
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 WCJ's interpretation of attorney's fees payable on the entire temporary disability indemnity including EDD lien recovery was unclear and required further analysis and due process compliance with Labor Code section 4903.2.
From the decision · page 5first time, the WCJ invoked Labor Code section 4903.2 to state that she intended to impose an attorney's fee on the entire award of temporary disability indemnity, and that EDD's recovery should be reduced by the attorney's fee. Labor Code section 4903.2 states:
The issue of the date of injury under Labor Code section 5412 was deferred due to lack of findings and need for further development.
From the decision · page 6Finally, we note that the Labor Code section 5412 date of injury was an issue for determination set forth at trial, but that there is no finding on that issue.
The permanent disability issue was deferred for further development due to unclear apportionment analysis by medical evaluators.
From the decision · page 5We will defer the issue of permanent disability so that the evidentiary record can be further developed on the issue of apportionment. We note that this case was initially presented as a specific injury occurring on November 15, 2019. Qualified medical evaluator David S. Kim, M.D. opined that 15% of applicant's permanent impairment was attributable to factors other than the industrial injury. (December 20, 2022 report at p. 9.) Primary treating physician Dr. Etemad found that 10% of applicant's impairment was due to non-industrial factors. (June 17, 2022 report at p. 8.) Subsequently, Dr. Kim opined that applicant's injury was a cumulative trauma. However, Dr.
The WCJ's award of 135 weeks of temporary disability payments exceeded the 104-week limit set by Labor Code section 4656(c)(2), requiring reconsideration and deferral for further analysis.
From the decision · page 3Turning to the merits, first addressing the issues raised by defendant in its Petition1, the WCJ erred in her apparent finding that defendant had liability for more than 104 weeks of temporary disability indemnity. Labor Code section 4656(c)(2) plainly states, "Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The WCJ awarded 135 weeks of temporary disability payments, exceeding the 104-week limit set by Labor Code section 4656(c)(2).
Favours Defendant prevailed
This statutory limit violation required reconsideration and deferral of the temporary disability issue.
From the decision · page 3Turning to the merits, first addressing the issues raised by defendant in its Petition1, the WCJ erred in her apparent finding that defendant had liability for more than 104 weeks of temporary disability indemnity. Labor Code section 4656(c)(2) plainly states, "Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from
No medical evidence showed applicant was temporarily disabled on November 16, 2019, the start date of temporary disability awarded by the WCJ.
Favours Defendant prevailed
Lack of medical evidence at the start date undermines the temporary disability award and supports deferral for further development.
From the decision · page 4However, in the further proceedings, in addition to Labor Code section 4656(c)(2), the parties and the WCJ should reanalyze the entire issue of temporary disability. Although the WCJ found temporary disability commencing on November 16, 2019, we find no medical evidence that applicant was temporarily disabled on that date. The evidentiary record contains only a single page of a medical record from November 14, 2019 which does not mention temporary disability status or the need for any modified duties. The first medical evidence in the record of temporary total or partial disability is the November 15, 2021 report of primary treating physician Alex H. Etemad, M.D. who opined that applicant was unable to lift more than 15 pounds. The WCJ found applicant temporarily disabled during this period pursuant to the "odd lot" doctrine:
Employer was not clearly informed of work restrictions or given opportunity to offer modified work.
Favours Defendant prevailed
This uncertainty affects the application of the odd lot doctrine and temporary disability entitlement, supporting deferral.
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.
Opined applicant was unable to lift more than 15 pounds as of November 15, 2021, supporting temporary disability under the odd lot doctrine.
Supports temporary disability claim and odd lot doctrine application.
From the decision · page 4However, in the further proceedings, in addition to Labor Code section 4656(c)(2), the parties and the WCJ should reanalyze the entire issue of temporary disability. Although the WCJ found temporary disability commencing on November 16, 2019, we find no medical evidence that applicant was temporarily disabled on that date. The evidentiary record contains only a single page of a medical record from November 14, 2019 which does not mention temporary disability status or the need for any modified duties. The first medical evidence in the record of temporary total or partial disability is the November 15, 2021 report of primary treating physician Alex H. Etemad, M.D. who opined that applicant was unable to lift more than 15 pounds. The WCJ found applicant temporarily disabled during this period pursuant to the "odd lot" doctrine:
Opined 15% of permanent impairment was due to non-industrial factors; later opined injury was cumulative trauma but did not perform apportionment analysis.
Medical opinion relevant to apportionment and permanent disability rating.
From the decision · page 5We will defer the issue of permanent disability so that the evidentiary record can be further developed on the issue of apportionment. We note that this case was initially presented as a specific injury occurring on November 15, 2019. Qualified medical evaluator David S. Kim, M.D. opined that 15% of applicant's permanent impairment was attributable to factors other than the industrial injury. (December 20, 2022 report at p. 9.) Primary treating physician Dr. Etemad found that 10% of applicant's impairment was due to non-industrial factors. (June 17, 2022 report at p. 8.) Subsequently, Dr. Kim opined that applicant's injury was a cumulative trauma. However, Dr.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4656(c)(2)
Temporary disability indemnity is limited to 104 compensable weeks within five years from the date of injury for a single injury occurring on or after January 1, 2008.
The WCJ's award of 135 weeks exceeded this statutory limit, requiring reconsideration and deferral.
From the decision · page 3Turning to the merits, first addressing the issues raised by defendant in its Petition1, the WCJ erred in her apparent finding that defendant had liability for more than 104 weeks of temporary disability indemnity. Labor Code section 4656(c)(2) plainly states, "Aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability shall not extend for more than 104 compensable weeks within a period of five years from
Labor Code section 4903.2
Attorney's fees may be awarded out of a lien claimant's recovery if certain criteria are met, including notice and bona fide issues requiring attorney services.
The WCJ's imposition of attorney's fees on the entire temporary disability indemnity including EDD lien recovery requires analysis of statutory criteria and due process compliance.
From the decision · page 5first time, the WCJ invoked Labor Code section 4903.2 to state that she intended to impose an attorney's fee on the entire award of temporary disability indemnity, and that EDD's recovery should be reduced by the attorney's fee. Labor Code section 4903.2 states:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's medical record from November 14, 2019 did not mention temporary disability or need for modified duties.
From the decision · page 4However, in the further proceedings, in addition to Labor Code section 4656(c)(2), the parties and the WCJ should reanalyze the entire issue of temporary disability. Although the WCJ found temporary disability commencing on November 16, 2019, we find no medical evidence that applicant was temporarily disabled on that date. The evidentiary record contains only a single page of a medical record from November 14, 2019 which does not mention temporary disability status or the need for any modified duties. The first medical evidence in the record of temporary total or partial disability is the November 15, 2021 report of primary treating physician Alex H. Etemad, M.D. who opined that applicant was unable to lift more than 15 pounds. The WCJ found applicant temporarily disabled during this period pursuant to the "odd lot" doctrine:
Employer was not clearly apprised of work restrictions or given opportunity to offer modified work.
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