ADJ9693769 — California WCAB decision

ADJ9693769 · September 26, 2022

The March 3, 2020 Findings and Award and Order is affirmed except that the findings and award of temporary disability and EDD reimbursement are rescinded. The liens of Dr. Haronian, California Interpreters, Spine and Ortho Center, and the Employment Development Department are disallowed.

Issues decided

Medical opinions weighed

Authorities named

District office

Oxnard

What the panel ordered

Defendant and lien claimant sought reconsideration of the March 3, 2020 Findings, Award and Order. The Appeals Board granted reconsideration to further study the factual and legal issues, and this is the decision after reconsideration.

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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.

LiensDefendant prevailed

The WCJ's finding that applicant did not sustain an orthopedic industrial injury supports the order that the lien of Spine and Ortho Center be disallowed.

From the decision · page 2The WCJ prepared a Report and Recommendation on Petition for Reconsideration in response to each petition. For the reasons stated in the Report prepared on March 24, 2020, in response to lien claimant's petition, which we adopt and incorporate by reference, we will affirm the WCJ's finding that applicant did not sustain an orthopedic industrial injury and his order that the lien of Spine and Ortho Center be disallowed. For the reasons discussed below, we will amend the WCJ's findings to find that applicant is not entitled to temporary disability and rescind the award of temporary disability indemnity.

The facts that decided it

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

Dr. Lipper's report was not sufficient to establish that applicant was temporarily disabled as a result of the industrial injury.

Favours Defendant prevailed

Without substantial medical evidence linking temporary disability to the industrial injury, temporary disability benefits could not be awarded.

From the decision · page 3It is well established that all decisions of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(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. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) For the WCJ to award EDD reimbursement for a period of temporary disability, there must be substantial medical evidence that applicant was temporarily disabled as a result of an industrial injury. In this case, the reporting of Dr. Lipper is not sufficient to establish that applicant was temporarily disabled as a result of the industrial injury.

Dr. Moelleken treated applicant for orthopedic injuries that were found to be non-industrial.

Favours Defendant prevailed

Treatment for non-industrial injuries cannot support an award of temporary disability for an industrial injury.

From the decision · page 3As mentioned above, applicant did not sustain an orthopedic injury but did sustain an injury in the form of heat stroke, dehydration, and exhaustion. The WCJ's award of temporary disability was based on the medical reporting of secondary treating physician Dr. Lipper. The WCJ interpreted Dr. Lipper's reporting as finding the applicant temporarily disabled based on an aggravation of an industrial injury. (Report, p. 3; Exhibit 4, October 13, 2015, Arthur Lipper, M.D., Medical Report, p. 2.) However, Dr. Lipper reported that applicant was placed on temporary disability by his primary treating physician Dr. Moelleken. (Exh. 4 at 3.) Dr. Moelleken treated applicant for orthopedic injuries that the WCJ found to be non-industrial. Furthermore, Dr. Lipper did not address the issue of temporary disability in any detail. As a secondary treating physician, he was not required to do so.

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.

secondary_treaterRejected

Dr. Lipper reported that applicant was placed on temporary disability by his primary treating physician Dr. Moelleken, who treated applicant for orthopedic injuries found to be non-industrial. Dr. Lipper did not address temporary disability in detail.

Dr. Lipper's reporting was not sufficient to establish temporary disability as a result of industrial injury.

From the decision · page 3As mentioned above, applicant did not sustain an orthopedic injury but did sustain an injury in the form of heat stroke, dehydration, and exhaustion. The WCJ's award of temporary disability was based on the medical reporting of secondary treating physician Dr. Lipper. The WCJ interpreted Dr. Lipper's reporting as finding the applicant temporarily disabled based on an aggravation of an industrial injury. (Report, p. 3; Exhibit 4, October 13, 2015, Arthur Lipper, M.D., Medical Report, p. 2.) However, Dr. Lipper reported that applicant was placed on temporary disability by his primary treating physician Dr. Moelleken. (Exh. 4 at 3.) Dr. Moelleken treated applicant for orthopedic injuries that the WCJ found to be non-industrial. Furthermore, Dr. Lipper did not address the issue of temporary disability in any detail. As a secondary treating physician, he was not required to do so.

PTPRejected

Dr. Moelleken treated applicant for orthopedic injuries that were found to be non-industrial.

Dr. Moelleken's treatment was for non-industrial injuries, so his opinion did not support industrial temporary disability.

From the decision · page 3As mentioned above, applicant did not sustain an orthopedic injury but did sustain an injury in the form of heat stroke, dehydration, and exhaustion. The WCJ's award of temporary disability was based on the medical reporting of secondary treating physician Dr. Lipper. The WCJ interpreted Dr. Lipper's reporting as finding the applicant temporarily disabled based on an aggravation of an industrial injury. (Report, p. 3; Exhibit 4, October 13, 2015, Arthur Lipper, M.D., Medical Report, p. 2.) However, Dr. Lipper reported that applicant was placed on temporary disability by his primary treating physician Dr. Moelleken. (Exh. 4 at 3.) Dr. Moelleken treated applicant for orthopedic injuries that the WCJ found to be non-industrial. Furthermore, Dr. Lipper did not address the issue of temporary disability in any detail. As a secondary treating physician, he was not required to do so.

ADJ9693769 · September 26, 2022

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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