ADJ10053711 · February 24, 2025

The panel found that interest is mandatory under Labor Code section 5800 and applicant is entitled to interest on the award of August 20, 2022, amending the findings accordingly.

From the decision · page 3We agree with the WCJ that interest is mandatory and applicant was not required to raise the issue of interest separately. That is, defendant should have automatically included the appropriate interest when it made payments. However, given the tortured history here, we will amend the decision accordingly so that all parties are clear. Therefore, we grant reconsideration and amend the Amended Supplemental Findings and Orders to find that interest is mandatory under section 5800 and that applicant is entitled to interest as appropriate on the award of August 20, 2022. (Finding of Fact 7, Order 5.) We otherwise affirm the Amended Supplemental Findings and Orders.

The panel held that the permanent disability award based on Dr. Newton's opinion is final and cannot be modified or reopened, denying the request to replace it with Dr. Greenspan's opinion.

From the decision · page 243. Request to Modify the PD Award based on Dr. Greenspan As explained above and in the November 25, 2024 opinion on decision, the findings and award contained in the August 30, 2022 Third Amended Findings and Award are now final, and will not be modified or reopened based on a revisiting of previously-admitted or available evidence, While that finality does not serve to negate the provisions of the final findings and award that ce1iain credits were to be adjusted by and between the parties and applied to the award of temporary disability benefits, it does mean that the award cannot be modified with respect to the underlying determination of permanent disability based upon one physician over another, in this case Dr. Newton over Dr. Greenspan. To alter or amend the now-final findings and award more than five years after the date of injury would violate Labor Code § 5804, which states that "[n]o award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition."

The panel found that interest is mandatory under Labor Code section 5800 and applicant is entitled to interest on the award of August 20, 2022.

Favours Applicant prevailed

This led to granting reconsideration to amend findings to include interest entitlement.

From the decision · page 3We agree with the WCJ that interest is mandatory and applicant was not required to raise the issue of interest separately. That is, defendant should have automatically included the appropriate interest when it made payments. However, given the tortured history here, we will amend the decision accordingly so that all parties are clear. Therefore, we grant reconsideration and amend the Amended Supplemental Findings and Orders to find that interest is mandatory under section 5800 and that applicant is entitled to interest as appropriate on the award of August 20, 2022. (Finding of Fact 7, Order 5.) We otherwise affirm the Amended Supplemental Findings and Orders.

The permanent disability award based on Dr. Newton's opinion is final and cannot be modified or reopened due to Labor Code section 5804.

Favours Defendant prevailed

This led to denial of the request to replace the permanent disability rating with Dr. Greenspan's opinion.

From the decision · page 243. Request to Modify the PD Award based on Dr. Greenspan As explained above and in the November 25, 2024 opinion on decision, the findings and award contained in the August 30, 2022 Third Amended Findings and Award are now final, and will not be modified or reopened based on a revisiting of previously-admitted or available evidence, While that finality does not serve to negate the provisions of the final findings and award that ce1iain credits were to be adjusted by and between the parties and applied to the award of temporary disability benefits, it does mean that the award cannot be modified with respect to the underlying determination of permanent disability based upon one physician over another, in this case Dr. Newton over Dr. Greenspan. To alter or amend the now-final findings and award more than five years after the date of injury would violate Labor Code § 5804, which states that "[n]o award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition."

Found applicant's injury caused 8% permanent disability and temporary disability from July 21, 2015 to August 20, 2019, with work restrictions and no accommodated work provided by employer during unemployment period.

Dr. Newton's opinion was based on an adequate examination and history and was used as the basis for the final permanent disability award.

From the decision · page 8in his supplemental report dated May 20, 2021, which has been identified and admitted as Court's X6, applicant had work restrictions during his period of unemployment from July 21, 2015 to early 2017, and there is no evidence that he was provided with accommodated work by the employer for this period. Dr. Newton found applicant to have reached Maximal Medical Improvement (MMI) as of his August 20, 2019 evaluation. Accordingly, this is found that applicant was temporarily disabled for the period, from July 21, 2015 to August 20, 2019, and is entitled to temporary disability indemnity for the maximum allowable period of 104 weeks, less credit for applicant's actual wages for subsequent part-time work for Hobo China as a dishwasher and maintenance person stating in early 2017, less credit for any sums paid by defendants, and less credit for sums paid by the Employment Development Department (EDD) during this period, and less an attorney fee equal to 15% of any net temporary disability indemnity due to applicant, to be held by defendants pending an

Deceased AME whose opinion was sought to replace Dr. Newton's permanent disability rating but was rejected due to finality and lack of record development.

Dr. Greenspan died before record development and his opinion was not used to modify the award.

From the decision · page 24Even if it were legally permissible to rewrite the provisions regarding permanent disability based on Dr. Newton contained in the August 30, 2022 Third Amended Findings and Order, it would be problematic because Dr. Greenspan died before development of the record to obtain substantial medical evidence

Labor Code section 5800

Interest is mandatory under Labor Code section 5800 on unpaid sums due under awards.

The panel amended the findings to include interest entitlement under this section.

From the decision · page 3We agree with the WCJ that interest is mandatory and applicant was not required to raise the issue of interest separately. That is, defendant should have automatically included the appropriate interest when it made payments. However, given the tortured history here, we will amend the decision accordingly so that all parties are clear. Therefore, we grant reconsideration and amend the Amended Supplemental Findings and Orders to find that interest is mandatory under section 5800 and that applicant is entitled to interest as appropriate on the award of August 20, 2022. (Finding of Fact 7, Order 5.) We otherwise affirm the Amended Supplemental Findings and Orders.

Labor Code section 5804

No award of compensation shall be rescinded, altered, or amended after five years from the date of injury except as provided by petition within that period.

The panel applied this to deny modification of the permanent disability award based on Dr. Greenspan's opinion.

From the decision · page 243. Request to Modify the PD Award based on Dr. Greenspan As explained above and in the November 25, 2024 opinion on decision, the findings and award contained in the August 30, 2022 Third Amended Findings and Award are now final, and will not be modified or reopened based on a revisiting of previously-admitted or available evidence, While that finality does not serve to negate the provisions of the final findings and award that ce1iain credits were to be adjusted by and between the parties and applied to the award of temporary disability benefits, it does mean that the award cannot be modified with respect to the underlying determination of permanent disability based upon one physician over another, in this case Dr. Newton over Dr. Greenspan. To alter or amend the now-final findings and award more than five years after the date of injury would violate Labor Code § 5804, which states that "[n]o award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition."

Applicant's testimony on wages and employment dates was found plausible and explained the credit for wages during temporary disability period.

From the decision · page 14the applicant's testimony on August 17, 2023 called into question the provision in the findings and award for a credit for his wages at Hobo China "starting in early 2017," because although he was not sure about the year he began working there, he appeared to be fairly certain that he started either August 31 of either 2016 or 2017, not early 2017. Under Labor Code Section 5803, the undersigned should have continuing jurisdiction to correct this error in the August 20, 2022 findings and award, by allowing credit in the form of an offset for actual wages based on subsequent testimony, in order to give effect to the intention to allow credit for earnings during the period of temporary disability that was found.

Defendants' exhibits and briefs explained their non-payment of temporary disability benefits due to dispute and credit adjustments, no adverse inference imposed.

From the decision · page 18In exercise of the discretion conferred by both Labor Code Section 5708 and the language of Evidence Code Section 413, the undersigned does not believe it is necessary or appropriate to employ any adverse inferences against either applicant with respect to his earnings or against defendants with respect to their motives. Both subjects have been adequately explained by applicant's testimony, where he plausibly identified his earnings, and defendant's exhibits and briefs, which clearly indicate that defendants chose not to pay temporary disability benefits because prior to the August 20, 2023 award the issue was in dispute and after the award they did not know the amount of credit that was included but left to the parties to determine and adjust in the award of permanent disability. Accordingly, no adverse inference was imposed in this case.