What the panel ordered
Affirm Findings of Fact and Order except amend to defer issue of temporary disability indemnity for period September 25, 2020 to April 27, 2021; return matter to WCJ for further proceedings
Petition for Reconsideration granted to further study factual and legal issues; WCJ Findings of Fact and Order issued October 4, 2021, under review
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 record lacks substantial evidence regarding the nature and physical demands of the modified work offered, any updated offers, and whether applicant timely objected to the work restrictions or discussed pain with physicians, thus the issue of entitlement to temporary disability indemnity for the period September 25, 2020 to April 27, 2021 is deferred for further development.
From the decision · page 4Here, our review of the record indicates that defendant offered applicant modified work on September 28, 2020. (Def. Exh. H, Transcript of Proceedings pp. 13 § 15.) However, the offer of modified work is not clear as to the actual nature of the work being offered or the physical demands of that work. Also, the document stated that the modified work was being offered effective September 27, 2020, and that the offer would be re-evaluated and updated on September 30, 2020, the date of applicant's next doctor's appointment. (MOH/SOE, p. 7; Transcript of Proceedings p. 13.) The record contains no evidence that there was a subsequent "updated" offer of modified work.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant offered modified work on September 28, 2020, but the offer was unclear as to the nature and physical demands of the work and no updated offer was made
Favours Applicant prevailed
Lack of clarity and absence of updated offer meant the record lacked substantial evidence to determine applicant's entitlement to temporary disability indemnity for the period
From the decision · page 4Here, our review of the record indicates that defendant offered applicant modified work on September 28, 2020. (Def. Exh. H, Transcript of Proceedings pp. 13 § 15.) However, the offer of modified work is not clear as to the actual nature of the work being offered or the physical demands of that work. Also, the document stated that the modified work was being offered effective September 27, 2020, and that the offer would be re-evaluated and updated on September 30, 2020, the date of applicant's next doctor's appointment. (MOH/SOE, p. 7; Transcript of Proceedings p. 13.) The record contains no evidence that there was a subsequent "updated" offer of modified work.
Applicant testified she could not perform modified work due to pain but did not object to treating physicians' statements that she could perform modified work
Favours Defendant prevailed
Applicant's testimony without objection to medical opinions weakened her claim and favored defendant
From the decision · page 4Further, at the trial applicant testified that she could not perform modified work "because she had a lot of pain." (MOH/SOE, p. 6.) But the trial record contains no evidence that applicant disagreed with her treating physicians' repeated statements that she could perform modified work.
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.
Applicant could return to modified work on September 26 and September 30, 2020, with restrictions including lifting up to 10 lbs., pushing/pulling up to 10 lbs., occasional bending and trunk rotation, wearing splint/brace on left upper extremity, and no use of left upper extremity.
From the decision · page 2Applicant received treatment for her injury by Keith Wresch, M.D. In the Doctor's First
Applicant could perform work with restrictions including no use of power/impact/vibratory tools and no gripping/squeezing/pinching with left upper extremity as of November 19, 2020.
From the decision · page 2The November 19, 2020 PR-2 from Thomas Mogensen, M.D., (signature page includes Dr.
Applicant could return to sedentary work as of April 27, 2021 and July 6, 2021.
From the decision · page 3Applicant changed treating physicians and was seen by Michael J. Chuang, M.D., on April 27, 2021. Dr. Chuang indicated that applicant could return to work but could only do sedentary work. (App. Exh. 8 D, Michael J. Chuang, M.D., p. 1 [EAMS p. 4].) In his July 6, 2021 PR-2, Dr. Chuang again stated that applicant could return to work but was limited to sedentary work. (App. Exh. 8 A, Dr. Chuang, July 6, 2021, p. 1.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Pacific Employers Ins. Co. v. Industrial Acc. Com. (Stroer) (1959) 52 Cal.2d 417
Under the 'odd lot' doctrine, a worker who is only partially disabled may receive temporary total disability payments if the partial disability results in a total loss of wages, with the burden on the employer to show suitable work is available
The doctrine places the burden of proof on the employer to show that work within the capabilities of the partially disabled employee is available; if not, the employee is entitled to temporary total disability benefits
From the decision · page 3DISCUSSION Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) As noted above, each of the treatment reports from applicant's treating physicians indicate that applicant could return to work but with various restrictions. (See App. Exhs. 8 and 9.) Under the `odd lot' doctrine, a worker who is only partially disabled may receive temporary total disability payments if the partial disability results in a total loss of wages. (Pacific Employers Ins. Co. v. Industrial Acc. Com.
Vittone v. Workers' Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 435
An injured worker may be estopped from claiming temporary disability indemnity for periods refusing suitable modified work without good cause
The same rule applies when an injured worker leaves the job after suitable modified work is provided
What proof carried it
The evidence the panel weighed, by kind.
Applicant testified she could not perform modified work due to pain, but did not object to treating physicians' statements that she could perform modified work
From the decision · page 4Further, at the trial applicant testified that she could not perform modified work "because she had a lot of pain." (MOH/SOE, p. 6.) But the trial record contains no evidence that applicant disagreed with her treating physicians' repeated statements that she could perform modified work.
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