What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defendant was reviewed by the WCJ and the WCAB panel.
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 QME Dr. Klassen found a period of temporary partial disability during the disputed period, and the employer failed to show work was available or offered, entitling the applicant to temporary total disability payments. The WCJ report found the release by the PA-C was not substantial evidence and the employer failed to properly investigate accommodations or notify the applicant of rights, supporting denial of reconsideration.
From the decision · page 1Contrary to defendant's assertion, we note that orthopaedic panel qualified medical examiner (PQME) Michael Klassen, M.D., found a period of temporary partial disability from November 27, 2019 to April 5, 2020. (Joint Exhibit Y, Dr. Klassen's 8/11/20 report, at p. 10.) If temporary partial disability is such that it effectively prevents an injured employee from performing any duty for which the worker is skilled or there is no showing by the employer that work was available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Lab. Code, § 4657; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 421 [24 Cal.Comp.Cases 144].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
QME Dr. Klassen found temporary partial disability from November 27, 2019 to April 5, 2020.
Favours Applicant prevailed
Supported the award of temporary total disability payments to applicant.
From the decision · page 1Contrary to defendant's assertion, we note that orthopaedic panel qualified medical examiner (PQME) Michael Klassen, M.D., found a period of temporary partial disability from November 27, 2019 to April 5, 2020. (Joint Exhibit Y, Dr. Klassen's 8/11/20 report, at p. 10.) If temporary partial disability is such that it effectively prevents an injured employee from performing any duty for which the worker is skilled or there is no showing by the employer that work was available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Lab. Code, § 4657; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 421 [24 Cal.Comp.Cases 144].)
Applicant testified that modified work was recommended by Dr. Leon but was told no modified work was available, unrebutted by employer.
Favours Applicant prevailed
Supported finding that no suitable work was offered, entitling applicant to temporary total disability payments.
From the decision · page 4Applicant thereafter sought the services of non-MPN physician, Samuel Leon. See App's Exhs. 4 through 7. Dr. Leon certified "disability" during the disputed period of time. He did not specify whether the disability was partial or total. The applicant testified at trial that Dr. Leon had given him a paper recommending modified employment. That he provided that note to Ryan Rocha, supervisor and "Caroline" of HR and was told that there was no modified work available. This testimony was unrebutted. Sum. Of Ev. Pg. 5, Lns 18-22.
Employer treated Dr. Leon's reports as unrelated to the industrial injury and did not send them to the WC administrator, depriving employer of opportunity to investigate accommodations.
Favours Applicant prevailed
Employer's failure to investigate accommodations supported denial of reconsideration and award of temporary total disability payments.
From the decision · page 4She acknowledged receiving the reports from Dr. Leon, but did not send those reports to Tristar, their WC administrator, but instead sent them to The Hartford, the third party administrator for personal leave. HR took the position that those reports were not related to the industrial injury [even though a plain reading of Dr. Leon's reports would reveal that they were directly related to the industrial injury].
Favours Applicant prevailed
Undermined employer's position and supported the QME's finding of temporary partial disability.
From the decision · page 3Neither report was countersigned by a Treating Physician within the meaning of the Labor Code.
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.
Found a period of temporary partial disability from November 27, 2019 to April 5, 2020, disagreeing with the release by the PA-C and supporting temporary total disability payments.
The QME disagreed with the release by the PA-C and found temporary partial disability during the disputed period, supporting the award of temporary total disability payments.
From the decision · page 1Contrary to defendant's assertion, we note that orthopaedic panel qualified medical examiner (PQME) Michael Klassen, M.D., found a period of temporary partial disability from November 27, 2019 to April 5, 2020. (Joint Exhibit Y, Dr. Klassen's 8/11/20 report, at p. 10.) If temporary partial disability is such that it effectively prevents an injured employee from performing any duty for which the worker is skilled or there is no showing by the employer that work was available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Lab. Code, § 4657; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 421 [24 Cal.Comp.Cases 144].)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code, 4657; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 421 [24 Cal.Comp.Cases 144]
If temporary partial disability effectively prevents an injured employee from performing any skilled duty or no work was offered, wage loss is deemed total and temporary total disability payments are due.
Applied to find applicant entitled to temporary total disability payments for the disputed period.
From the decision · page 1Contrary to defendant's assertion, we note that orthopaedic panel qualified medical examiner (PQME) Michael Klassen, M.D., found a period of temporary partial disability from November 27, 2019 to April 5, 2020. (Joint Exhibit Y, Dr. Klassen's 8/11/20 report, at p. 10.) If temporary partial disability is such that it effectively prevents an injured employee from performing any duty for which the worker is skilled or there is no showing by the employer that work was available and offered, the wage loss is deemed total and the injured worker is entitled to temporary total disability payments. (Lab. Code, § 4657; Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 421 [24 Cal.Comp.Cases 144].)
What proof carried it
The evidence the panel weighed, by kind.
Employer's failure to send Dr. Leon's reports to the WC administrator and treating them as unrelated to the industrial injury, depriving the employer of opportunity to investigate accommodations.
From the decision · page 4She acknowledged receiving the reports from Dr. Leon, but did not send those reports to Tristar, their WC administrator, but instead sent them to The Hartford, the third party administrator for personal leave. HR took the position that those reports were not related to the industrial injury [even though a plain reading of Dr. Leon's reports would reveal that they were directly related to the industrial injury].
Applicant's testimony that Dr. Leon recommended modified employment but was told no modified work was available, unrebutted by employer.
From the decision · page 4Applicant thereafter sought the services of non-MPN physician, Samuel Leon. See App's Exhs. 4 through 7. Dr. Leon certified "disability" during the disputed period of time. He did not specify whether the disability was partial or total. The applicant testified at trial that Dr. Leon had given him a paper recommending modified employment. That he provided that note to Ryan Rocha, supervisor and "Caroline" of HR and was told that there was no modified work available. This testimony was unrebutted. Sum. Of Ev. Pg. 5, Lns 18-22.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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