ADJ12234008 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; April 4, 2022 Findings and Order rescinded; matter returned to WCJ for further proceedings.

Applicant seeks reconsideration of the Findings and Order issued by the WCJ on April 4, 2022, which found no substantial medical evidence of temporary total disability and good cause for termination; the WCAB grants reconsideration, rescinds the F&O, and returns the matter to the WCJ 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 disabilityRemandedneck · back · right shoulder · right wrist · right knee · right ankle

The medical evidence was inconsistent and lacked explanation for varying opinions on applicant's disability status, preventing determination of temporary total disability periods; the issue of good cause for termination depends on establishing temporary disability periods after termination date.

From the decision · page 1Applicant seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on April 4, 2022, wherein the WCJ found in pertinent part that the trial record does not contain substantial medical evidence that applicant was temporarily totally disabled for the period from July 16, 2019, through October 18, 2020, and that there was good cause for applicant's employment to be terminated.1

The facts that decided it

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

Medical evidence was inconsistent and doctors did not explain basis for varying opinions on disability status.

Favours neutral

Prevented determination of temporary total disability periods.

From the decision · page 4Here, our review of the medical evidence clearly indicates that the doctors' reports are inconsistent as to the issue of applicant's disability status, and the doctors did not explain the basis for their varying opinions. For example, in her initial report QME Dr. Ryan stated that applicant had reached maximum medical improvement/permanent and stationary status, she assigned percentages of WPI for the various injured body parts, and addressed the issue of apportionment. (See App. Exh. 2, pp. 64 § 79.) After re-examining applicant, Dr. Ryan reiterated her opinion that applicant's condition was permanent and stationary (App. Exh. 3, p. 55) but in her subsequent report she said it was a "typographical error" and that applicant was "not at a permanent and stationary/maximal medical improvement level." (App. Exh. 4, p. 10.) Having discussed her opinions regarding impairment and apportionment, Dr. Ryan had clearly previously determined that applicant's condition was permanent and stationary and had reached maximum medical improvement. However, she did not explain the basis for changing her opinion as stated in her October 28, 2020 report. (App. Exh. 4, p. 10.) Also, the treating doctor reports do not explain why applicant's condition was permanent stationary as of December 20, 2018, but applicant was temporarily totally disabled from October 22, 2020, through December 4, 2020.

Issue of good cause for termination depends on establishing temporary disability periods after termination date.

Favours neutral

Good cause issue does not arise until temporary disability periods after termination are determined.

From the decision · page 5Finally, it is important to note that the issue of whether applicant's employment was terminated for "good cause" does not arise until it is determined that there were periods of temporary disability after the date of the termination (July 15, 2019; see Joint Exh. AA). Although we are not making any determination as to the issue of the termination of applicant's employment, it must be noted that an injured employee who is terminated from his or her employment for good cause is not entitled to temporary disability benefits; however, the employer has the burden of proving that the injured worker was terminated for good cause. "Good cause" in this context relates to the employee's misconduct and the employer remains liable for temporary disability benefits after terminating an employee if it fails to establish good cause by showing employee misconduct. (See for example: Butterball Turkey Co. v. Workers' Comp.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, 5952(d)

An award, order, or decision must be supported by substantial evidence in light of the entire record.

Applied to review of medical evidence and disability determination.

From the decision · page 3It is well established that an award, order, or decision of the Appeals Board must be supported by substantial evidence in light of the entire record. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v.

Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399, 407

A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely conclusions.

Applied to evaluate the medical reports' sufficiency as evidence.

From the decision · page 4Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500].) A medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 399, 407 [33 Cal.Comp.Cases 647].)

Lab. Code, 5701, 5906

The Appeals Board has discretionary authority to develop the record when the medical record is not substantial evidence or insufficient to determine an issue.

Applied to justify remanding for further development of the medical record.

From the decision · page 4The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or where there is insufficient evidence to determine an issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Thus, under these circumstances it is appropriate that this matter be returned to the trial level for further development of the record. The parties are reminded that, when the medical record requires further development, the record should first be supplemented by physicians who have already reported in the case. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).)

ADJ12234008 · June 17, 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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