ADJ13565822 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by Defendant challenging the WCJ's finding of temporary total disability and the denial of concurrent disability periods.

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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 disabilityDefendant prevailedleft shoulder

The WCJ found no concurrent periods of temporary disability between the cumulative trauma claim and the prior specific injury claim, as the periods did not overlap.

From the decision · page 7The period from October 21, 2021 through December 16, 2021 does not run concurrently with any of the periods of benefits and temporary disability indemnity paid on the Applicant's July 1, 2019 specific injury claim, which were paid from September 6, 2019 through September 2, 2021. Thus, there are no overlapping periods of temporary disability between the Applicant's two independent injuries, either partial or complete, to support a finding that such periods ran concurrently as contemplated under Foster.

Temporary disability

The facts that decided it

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

Dr. Jonathan Nassos' detailed history, subjective complaints, and physical examination findings supported temporary total disability.

Favours Applicant prevailed

The WCJ relied on Dr. Nassos' substantial medical evidence to find temporary total disability.

From the decision · page 7As it relates to the issue of Applicant's entitlement to temporary disability, the undersigned remains persuaded that Dr. Nassos' opinions are substantial evidence so as to support a finding of periods of temporary total disability when measured against the entire record. Dr. Nassos takes a detailed history of the Applicant's duties as a San Bernardino County Sheriff and the history of the injuries as reported by the Applicant. He further documents the Applicant's subjective complaints, specifically as to the left shoulder, which include daily constant aching pain with stiffness and weakness that travels down the arm and hand, among other subjective complaints. Dr. Nassos further corroborates these subjective complaints with a comprehensive physical examination, which revealed approximately half of the normal range of motion for the left shoulder, tenderness, and positive Hawkins sign and Jobe's test that reveal potential impingement and instability, respectively. Specific to the left shoulder, Dr. Nassos recommended physical therapy.

Dr. John Steinman's report was internally inconsistent regarding maximum medical improvement and potential for improvement.

Favours Applicant prevailed

The WCJ rejected Dr. Steinman's opinion as not substantial medical evidence for disability status.

From the decision · page 5The undersigned remains convinced that Dr. Steinman's reporting is internally inconsistent, and therefore not substantial medical evidence as it relates to the Applicant's disability status. Immediately preceding Dr. Steinman's declaration that the Applicant has reached the point of maximum medical improvement, Dr. Steinman suggested that the Applicant can still "obtain substantially higher levels of functioning" through aggressive low impact aerobic conditioning. (Defendant's Exhibit A, page 11.) This strongly suggests that the Applicant's condition can substantially change within the next year by way of obtaining higher levels of functioning.

There were no concurrent periods of temporary disability between the cumulative trauma claim and the prior specific injury claim.

Favours Defendant prevailed

The WCJ found no overlap in disability periods, denying concurrency under Labor Code section 4656(c)(1).

From the decision · page 7The period from October 21, 2021 through December 16, 2021 does not run concurrently with any of the periods of benefits and temporary disability indemnity paid on the Applicant's July 1, 2019 specific injury claim, which were paid from September 6, 2019 through September 2, 2021. Thus, there are no overlapping periods of temporary disability between the Applicant's two independent injuries, either partial or complete, to support a finding that such periods ran concurrently as contemplated under Foster.

The rules the panel named

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

Cal. Code of Regs., tit. 8, § 10152

A disability is considered permanent when the employee has reached maximum medical improvement, meaning the condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment.

Applied to evaluate Dr. Steinman's MMI opinion and disability status.

From the decision · page 5A disability is considered permanent when the employee has reached maximum medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment. (Cal. Code of Regs., tit. 8, § 10152.)

Zemke v. WCAB (1968) 33 CCC 358

A medical opinion must disclose the underlying basis for its conclusions to constitute substantial evidence.

Applied to assess the sufficiency of Dr. Steinman's opinion.

From the decision · page 6To the contrary, Petitioner states that the Applicant's left shoulder clearly has been stabilized for well over a year, even without treatment, given that the Applicant had already been nearly 1 year and 7 months removed from his last date of work; to support this conclusion, she relies upon the fact that Applicant had not sought any medical treatment and that Applicant only had minimal findings that resulting in of 2% whole person impairment. (Defendant's Petition, page 7, lines 14- 16.) However, Petitioner has neither established herself as a medical expert so as to definitively conclude that Applicant's left shoulder has stabilized nor provided any authority that would suggest that a "relatively" low whole person impairment rating directly correlates to an injured worker's temporary disability status. More significantly, the Petitioner has not directed the Court's attention to any medical reports within the admitted record that would explain how and why the Applicant's left shoulder has stabilized beyond the following conclusory statement by Dr. Steinman: "It is my opinion this patient has reached the point of maximum medical improvement." And a medical opinion must disclose the underlying basis for its conclusions in order to constitute substantial evidence. (Zemke v. WCAB (1968) 33 CCC 358, 361.)

Labor Code §§ 5903, 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312

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

Applied to evaluate medical evidence for temporary disability.

From the decision · page 6An award, order, or decision by the WCAB must be supported by substantial medical evidence in light of the entire record. (Lab. Code § 5903, 5952; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317-319; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635- 637.) To be substantial medical evidence, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts, an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Granados v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399; McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408; Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc).)

Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal. 3d 312

The test of substantiality must be measured on the basis of the entire record, rather than isolating evidence that supports the board and ignoring other relevant facts.

Applied to weigh medical evidence in context of entire record.

From the decision · page 7The test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence, which supports the board and ignoring other relevant facts of record which rebut or explain that evidence. (Garza, supra, 3 Cal. 3d at 503.)

Foster v. WCAB (2008) 73 Cal. Comp. Cases 466

When independent injuries result in concurrent periods of temporary disability, the 104-week, two-year limitation under Labor Code section 4656(c)(1) runs concurrently.

Applied to determine concurrency of temporary disability periods.

From the decision · page 7When independent injuries result in concurrent periods of temporary disability, the 104-week, two- year limitation under Labor Code section 4656(c)(1) likewise runs concurrently. (Foster v. WCAB (2008) 73 Cal. Comp. Cases 466, 472.)

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Detailed history, subjective complaints, and physical examination by Dr. Nassos

From the decision · page 7As it relates to the issue of Applicant's entitlement to temporary disability, the undersigned remains persuaded that Dr. Nassos' opinions are substantial evidence so as to support a finding of periods of temporary total disability when measured against the entire record. Dr. Nassos takes a detailed history of the Applicant's duties as a San Bernardino County Sheriff and the history of the injuries as reported by the Applicant. He further documents the Applicant's subjective complaints, specifically as to the left shoulder, which include daily constant aching pain with stiffness and weakness that travels down the arm and hand, among other subjective complaints. Dr. Nassos further corroborates these subjective complaints with a comprehensive physical examination, which revealed approximately half of the normal range of motion for the left shoulder, tenderness, and positive Hawkins sign and Jobe's test that reveal potential impingement and instability, respectively. Specific to the left shoulder, Dr. Nassos recommended physical therapy.

expert methodologyfavours Applicant prevailed

Internal inconsistency in Dr. Steinman's report regarding maximum medical improvement

From the decision · page 5The undersigned remains convinced that Dr. Steinman's reporting is internally inconsistent, and therefore not substantial medical evidence as it relates to the Applicant's disability status. Immediately preceding Dr. Steinman's declaration that the Applicant has reached the point of maximum medical improvement, Dr. Steinman suggested that the Applicant can still "obtain substantially higher levels of functioning" through aggressive low impact aerobic conditioning. (Defendant's Exhibit A, page 11.) This strongly suggests that the Applicant's condition can substantially change within the next year by way of obtaining higher levels of functioning.

ADJ13565822 · April 25, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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