What the panel ordered
The Appeals Board granted reconsideration, rescinded the July 12, 2024 Findings and Award, substituted a new Findings and Award restating the WCJ's decision except deferring issues of temporary disability from November 1, 2020 to March 31, 2021, and the mechanism of injury under Labor Code section 4656(c)(3). The matter was returned to the trial level for further proceedings.
Defendant Tosca Services, LLC sought reconsideration of the July 12, 2024 Findings and Award. The WCJ prepared a Report and Recommendation on Petition for Reconsideration recommending denial. The Appeals Board granted reconsideration, rescinded the F&A, and substituted a new Findings and Award deferring certain issues and returning the matter to the trial level for further proceedings.
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 was deficient in identifying the specific mechanism of injury to a reasonable medical probability, with conflicting medical history and lack of substantive discussion on whether the injury was high-velocity as required by the statute.
From the decision · page 9We are similarly persuaded that the record is deficient with respect to the mechanism of injury. The WCJ determined that applicant is entitled to the extended periods of temporary total disability available under section 4656(c)(3) because his injury involved either a high-velocity eye injury or a chemical burn to the eyes. (Lab. Code, § 4656(c)(3)(F) & (G).) Pursuant to section 4656(c)(3) either mechanism of injury would allow applicant to receive TTD benefits up to 240 compensable weeks within five years from the date of injury.
The record was found inadequate to fully address the temporary total disability claimed between November 1, 2020 to March 31, 2021 due to conflicting medical opinions and lack of substantial medical evidence on disability status and work restrictions during that period.
From the decision · page 9We conclude, however, that the existing record does not adequately address the issue. The record offers conflicting opinions as to applicant's disability status, including the opinion of Dr. del Campo in both of his reports of February, 2021 that applicant could return to his usual work, but also deferring applicant's work status to the treating ophthalmologist at LLUMC. (Ex. 5, Report of Gabriel Martin del Campo, M.D., dated February 11, 2021, at p. 3; Ex. 4, Report of Gabriel Martin del Campo, M.D., dated February 25, 2021, at p. 3.) The record regarding assigned work restrictions and whether the employer was able to accommodate those restrictions is similarly ambiguous. While the December 20, 2022 report of QME Dr. Joseph posits the existence of work restrictions, none are identified with specificity. (Ex. 1, Report of Boban Joseph, M.D., dated December 20, 2022, at p.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Medical record did not identify specific mechanism of injury to reasonable medical probability
Favours neutral
Resulted in deferral of issue whether injury was a chemical burn or high-velocity eye injury under Labor Code section 4656(c)(3).
From the decision · page 9We are similarly persuaded that the record is deficient with respect to the mechanism of injury. The WCJ determined that applicant is entitled to the extended periods of temporary total disability available under section 4656(c)(3) because his injury involved either a high-velocity eye injury or a chemical burn to the eyes. (Lab. Code, § 4656(c)(3)(F) & (G).) Pursuant to section 4656(c)(3) either mechanism of injury would allow applicant to receive TTD benefits up to 240 compensable weeks within five years from the date of injury.
Conflicting medical opinions and lack of substantial evidence on applicant's disability status and work restrictions during November 1, 2020 to March 31, 2021
Favours neutral
Led to deferral of temporary disability issue for further development of the record.
From the decision · page 9We conclude, however, that the existing record does not adequately address the issue. The record offers conflicting opinions as to applicant's disability status, including the opinion of Dr. del Campo in both of his reports of February, 2021 that applicant could return to his usual work, but also deferring applicant's work status to the treating ophthalmologist at LLUMC. (Ex. 5, Report of Gabriel Martin del Campo, M.D., dated February 11, 2021, at p. 3; Ex. 4, Report of Gabriel Martin del Campo, M.D., dated February 25, 2021, at p. 3.) The record regarding assigned work restrictions and whether the employer was able to accommodate those restrictions is similarly ambiguous. While the December 20, 2022 report of QME Dr. Joseph posits the existence of work restrictions, none are identified with specificity. (Ex. 1, Report of Boban Joseph, M.D., dated December 20, 2022, at p.
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.
Noted bilateral eye chemical irritation and right eye corneal opacity; initially opined applicant could perform usual work but deferred work status to ophthalmologist; later updated diagnosis and deferred work status.
Conflicting opinions on disability status and deferral to ophthalmologist for work status contributed to record inadequacy for temporary disability determination.
From the decision · page 2On February 11, 2021, applicant was evaluated by Primary Treating Physician (PTP) Gabriel del Campo, M.D. The PTP noted applicant's report of a bilateral eye injury where "something went into right eye while operating forklift." (Ex. 5, Report of Gabriel Martin del
Found medical findings consistent with injury; applicant not completely disabled but could work with restrictions; deferred temporary functional work restrictions to PTP; noted temporary partial disability immediately after injury.
QME's opinion on disability and work restrictions was considered but lacked specificity on restrictions and timing, contributing to deferral of temporary disability issue.
From the decision · page 3On February 28, 2022, Qualified Medical Evaluator (QME) Boban Joseph, M.D., evaluated applicant in ophthalmology. (Ex. 2, Report of Boban Joseph, M.D., dated February 28, 2022.) Applicant reported a history of injury as follows:
Issued disability certificate restricting forklift driving until corneal transplant in March 2024; defendant commenced TTD payments as of December 14, 2023.
Provided evidence of disability and work restrictions supporting TTD payments from December 14, 2023 onward.
From the decision · page 5On December 14, 2023, Kris Storkersen, M.D., of the Arrowhead Regional Medical Center issued a Certificate of Disability and/or Return to School/Work noting that applicant would be "unable to drive forklift with monocular vision," and "will be off until corneal transplant 3/2024." (Ex. 6, Report of Kris Storkersen, M.D., dated December 14, 2023.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 5701, 5903, 5906, 5952(d); McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408; McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (en banc)
Substantial evidence required for Appeals Board decisions; medical opinions must be based on reasonable medical probability; Board has authority to develop record when evidence is insufficient.
Applied to defer issues due to inadequate medical evidence and to order further development of the record.
From the decision · page 10It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d);Lamb v. Workmen's Comp. Appeals Bd.(1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310];Garza v. Workmen's Comp. Appeals Bd.(1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500];LeVesque v. Workmen's Comp. Appeals Bd.(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence. (Lab. Code, § 5701, 5906;Tyler v. Workers' Comp. Appeals Bd.(1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924] (Tyler); seeMcClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) In our en banc decision inMcDuffie v. Los Angeles County Metropolitan Transit Authority(2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical evidence, at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record...
What proof carried it
The evidence the panel weighed, by kind.
Conflicting medical opinions on disability status and work restrictions during November 1, 2020 to March 31, 2021
From the decision · page 9We conclude, however, that the existing record does not adequately address the issue. The record offers conflicting opinions as to applicant's disability status, including the opinion of Dr. del Campo in both of his reports of February, 2021 that applicant could return to his usual work, but also deferring applicant's work status to the treating ophthalmologist at LLUMC. (Ex. 5, Report of Gabriel Martin del Campo, M.D., dated February 11, 2021, at p. 3; Ex. 4, Report of Gabriel Martin del Campo, M.D., dated February 25, 2021, at p. 3.) The record regarding assigned work restrictions and whether the employer was able to accommodate those restrictions is similarly ambiguous. While the December 20, 2022 report of QME Dr. Joseph posits the existence of work restrictions, none are identified with specificity. (Ex. 1, Report of Boban Joseph, M.D., dated December 20, 2022, at p.
Lack of substantial medical opinion on specific work restrictions and employer's accommodation during claimed TTD period
From the decision · page 9We conclude, however, that the existing record does not adequately address the issue. The record offers conflicting opinions as to applicant's disability status, including the opinion of Dr. del Campo in both of his reports of February, 2021 that applicant could return to his usual work, but also deferring applicant's work status to the treating ophthalmologist at LLUMC. (Ex. 5, Report of Gabriel Martin del Campo, M.D., dated February 11, 2021, at p. 3; Ex. 4, Report of Gabriel Martin del Campo, M.D., dated February 25, 2021, at p. 3.) The record regarding assigned work restrictions and whether the employer was able to accommodate those restrictions is similarly ambiguous. While the December 20, 2022 report of QME Dr. Joseph posits the existence of work restrictions, none are identified with specificity. (Ex. 1, Report of Boban Joseph, M.D., dated December 20, 2022, at p.
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