What the panel ordered
Petition for reconsideration granted; Findings of Fact affirmed except amended to find no temporary disability indemnity from November 26, 2020.
Applicant sought reconsideration of the Findings of Fact issued by the WCJ on October 19, 2021, regarding injury and disability status.
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 prevailedlow back · right lower extremity
The WCAB found no substantial medical evidence that applicant was temporarily totally disabled after November 26, 2020, relying on QME Dr. McGahan's opinion that the condition was permanent and stationary as of November 4, 2020, and noting that treating physician Dr. Smolins did not address maximum medical improvement status.
From the decision · page 3A determination regarding whether an applicant is permanent and stationary or temporarily disabled typically requires medical evidence. (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 867 [44 Cal.Comp.Cases 798]; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988 [42 Cal.Comp.Cases 114].) In each of his reports Dr. Smolins assigned work restrictions but he did not address the issue of applicant's maximum medical improvement/ permanent and stationary status. (See App. Exhs. 2 § 9, Work Status Report.) Thus, his reports are not substantial evidence that applicant is temporarily totally disabled. As noted above, in both of his reports, QME Dr. McGahan stated that applicant's condition was permanent and stationary as of November 4, 2020. There is no medical evidence in the record that contradicts or is inconsistent with Dr. McGahan's opinion. It is important to note that in his most recent treatment report, Dr. Smolins stated that applicant was "interested in getting a second opinion" as to whether he should undergo surgery. (App. Exh. 11, p. 6.) In that context, it is also important to note that in his second report, Dr. McGahan explained that, "If... the applicant does indeed undergo surgery, then certainly his permanent and stationary date would change." (Joint Exh. BB, p. 3.)