ADJ19258673 · July 18, 2025

The WCJ's award was based on substantial evidence from PQME Dr. Ehya's report, which found applicant not permanent and stationary and entitled to continuing temporary disability indemnity. Defendant failed to show modified work was offered.

From the decision · page 5Here, the WCJ's award of temporary disability indemnity was based upon the January 30,

Dr. Ehya's January 30, 2025 report found applicant not permanent and stationary and entitled to continuing temporary disability indemnity.

Favours Applicant prevailed

This report was relied upon by the WCJ and the panel as substantial evidence supporting the award.

From the decision · page 5Here, the WCJ's award of temporary disability indemnity was based upon the January 30,

Defendant failed to show that modified or alternative work was offered to applicant.

Favours Applicant prevailed

Employer's failure to show work availability supports entitlement to temporary disability indemnity.

From the decision · page 6extremities; and standing or walking to tolerance." (Ibid.) Dr. Ehya indicated that according to applicant, "[the] employer told him there was no[t] modified duty." (Ex. X, p. 4.) Defendant failed to provide any rebuttal evidence showing that an offer of modified or alternative work was provided to applicant.

Applicant reached medical plateau and was permanent and stationary as of December 10, 2024 with permanent work restrictions for right knee.

Dr. Glousman's report was admitted but the panel relied more on Dr. Ehya's report for the decision.

From the decision · page 2On December 10, 2024, Dr. Glousman completed a medical-legal evaluation of applicant and issued a report opining that "in all medical probability[,] the orthopedic complaint of the right leg and right knee was caused by the industrial accident on November 2, 2023." (Exhibit A, p. 6.) He noted that applicant had "reached a medical plateau" and was therefore "permanent and stationary" as of December 10, 2024 with "permanent work restrictions for the right knee" consisting of no "repetitive squatting, kneeling, or climbing" and "no lifting over 25 pounds." (Id. at pp. 5-6.)

Applicant sustained industrial injury to right leg, right knee, and lumbar spine; not yet at maximum medical improvement; reasonable work restrictions recommended; entitled to continuing temporary disability indemnity.

Dr. Ehya's report was found to be substantial evidence based on adequate reasoning, relevant facts, and thorough examination.

From the decision · page 2On January 30, 2025, Dr. Ehya evaluated the applicant and issued a report opining that "with reasonable medical probability" applicant sustained an industrial injury to his right leg, right knee, and lumbar spine. (Exhibit X, p. 22.) Dr. Ehya further noted that applicant had not yet reached "maximum medical improvement" and that "a period of three days of temporary total disability would have been reasonable following the industrial injury of November 2, 2023" and "[a]fter that time, modified work duties would have been reasonable," with "work restrictions of no lifting, carrying, pushing, or pulling greater than 15 pounds; no repetitive squatting or kneeling on the lower extremities; and standing or walking to tolerance." (Ibid.) Also noted was the fact that applicant had been "self-employed since 2018" and was "accepting disability checks" from defendant "while receiving an income from his personally owned company." (Ibid.) Applicant, however, indicated that the self-employment did "not increase his right knee pain." (Ibid.) In order to provide "[f]urther treatment recommendations," Dr. Ehya recommended additional diagnostics including x-rays and an MRI of the lumbar spine, EMG and nerve conduction studies of the bilateral lower extremities, MRI with arthrogram of the right knee, and MRIs of the right tibia and fibula. (Ibid.)

Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856

Temporary disability indemnity is payable during the healing period until the worker recovers or becomes permanent and stationary; employer's failure to show modified work affects entitlement.

Applied to determine entitlement to temporary disability indemnity based on work availability and medical status.

From the decision · page 5"In general, temporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status. [citation] Temporary disability may be total (incapable of performing any kind of work), or partial (capable of performing some kind of work). [citation] If the employee is able to obtain some type of work despite the partial incapacity, the worker is entitled to compensation on a wage-loss basis. [citation] If the partially disabled worker can perform some type of work but chooses not to, his "probable earning ability" will be used to compute wage-loss compensation for partial disability. [citation] If the temporary partial disability is such that it effectively prevents the employee from performing any duty for which the worker is skilled or there is no showing by the employer that work is available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. [citations]"

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

A decision must be based on admitted evidence and supported by substantial evidence, including medical opinions framed in reasonable medical probability.

Applied to evaluate the sufficiency of medical evidence supporting the award.

From the decision · page 6Further, pursuant to Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Bd. en banc), a decision "must be based on admitted evidence in the record" (Id. at p. 478) and must be supported by substantial evidence. (Lab. Code, § 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) A medical opinion proffered as substantial evidence must be framed in terms of reasonable medical probability, be based on pertinent facts, an adequate examination, and history, set forth reasoning in support of its conclusions, and not be speculative. (E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v.

Applicant's failure to obtain regular medical treatment since December 10, 2024 was contested by defendant but did not negate entitlement.

From the decision · page 1Defendant contends that applicant's failure to obtain regular medical treatment since December 10, 2024 renders the WCJ's award of continued temporary disability improper. (Petition, p. 8.) Defendant further contends that if the reporting from the panel Qualified Medical Evaluator (PQME), Dr. Anoush Ehya, is found to be substantial evidence, applicant is entitled, at most, to 45 additional days of temporary partial disability starting from the date of the January 30, 2025 evaluation. (Ibid.)

Defendant failed to provide evidence of an offer of modified or alternative work.

From the decision · page 6extremities; and standing or walking to tolerance." (Ibid.) Dr. Ehya indicated that according to applicant, "[the] employer told him there was no[t] modified duty." (Ex. X, p. 4.) Defendant failed to provide any rebuttal evidence showing that an offer of modified or alternative work was provided to applicant.