ADJ16838747 · May 12, 2023

The WCAB found it has either exclusive or concurrent jurisdiction over the claim based on case law and the nature of the claimant's work being land-based maritime related.

From the decision · page 41. Does the WCAB Have Jurisdiction to hear this dispute?

The WCJ found Dr. Rakkar's report to be substantial medical evidence supporting total temporary disability from December 12, 2022, continuing, and the WCAB panel upheld this finding, denying the petition for reconsideration.

From the decision · page 3applicant, born [ ], while employed on August 11, 2022, in Richmond, California, as a security guard by Greater Bay Protection Services, Inc., insured for workers' compensation by Accredited Surety and Casualty Company, inc., sustained injury to his right shoulder. His primary treating physician, Dr. George Rakkar, issued a December 12, 2022, report which forms the basis for the claim of temporary disability. The matter came to Expedited Hearing on January 25, 2023, on the issues of temporary disability based on the reporting of Dr. Rakkar. Brought up for the first time at Trial was issue that the Board does not have jurisdiction over this claim, as it falls under the LHWCA (Longshore and Harbor Workers' Compensation Act). Defendants assert that the board does not have jurisdiction and that this issue is a threshold issue.

Applicant sustained injury to right shoulder on August 11, 2022, while employed as security guard.

Favours Applicant prevailed

Established the basis for the claim and jurisdiction.

WCAB has concurrent or exclusive jurisdiction over the claim based on case law and the nature of the claimant's work.

Favours Applicant prevailed

Supported the finding of jurisdiction in favor of applicant.

From the decision · page 41. Does the WCAB Have Jurisdiction to hear this dispute?

Dr. George Rakkar's medical report found applicant totally temporarily disabled from December 12, 2022, continuing.

Favours Applicant prevailed

Supported the award of temporary disability benefits to applicant.

From the decision · page 3applicant, born [ ], while employed on August 11, 2022, in Richmond, California, as a security guard by Greater Bay Protection Services, Inc., insured for workers' compensation by Accredited Surety and Casualty Company, inc., sustained injury to his right shoulder. His primary treating physician, Dr. George Rakkar, issued a December 12, 2022, report which forms the basis for the claim of temporary disability. The matter came to Expedited Hearing on January 25, 2023, on the issues of temporary disability based on the reporting of Dr. Rakkar. Brought up for the first time at Trial was issue that the Board does not have jurisdiction over this claim, as it falls under the LHWCA (Longshore and Harbor Workers' Compensation Act). Defendants assert that the board does not have jurisdiction and that this issue is a threshold issue.

Defendants did not provide rebuttal medical evidence and failed to show applicant capable of returning to work.

Favours Applicant prevailed

Supported the finding that applicant remains temporarily disabled.

From the decision · page 6Defendants argue that the reporting of Dr. Rakkar is not substantial medical evidence, which I have addressed in my opinion on decision. Defendants have not offered any evidence, whatsoever, indicating that the applicant is capable of returning to work. They have not provided rebuttal reports to those of Dr. Rakkar. They point out that the applicant had a prior injury, shortly before his industrial injury, to the same body part. (Petition for Reconsideration page 3, lines 1-7). The implication seems to be that perhaps the need for treatment and/or temporary disability is due to this pre-existing injury. However, this claim is accepted, and neither medical treatment nor temporary disability are apportionable. If the uncontroverted medical evidence establishes that an employee is still temporarily disabled, the appeals board does not have substantial evidence to hold that the employee is not entitled to temporary disability. LeVesque v. WCAB (1970) 35 CCC 16.

Found applicant totally temporarily disabled until February 28, 2023, based on history, physical exam, and request for further diagnostics; report found to be substantial medical evidence.

Dr. Rakkar took a history of the injury, reviewed reports, performed a physical exam, requested diagnostics, and noted lack of treatment but inability to use right upper extremity, concluding total temporary disability until February 28, 2023.

From the decision · page 3applicant, born [ ], while employed on August 11, 2022, in Richmond, California, as a security guard by Greater Bay Protection Services, Inc., insured for workers' compensation by Accredited Surety and Casualty Company, inc., sustained injury to his right shoulder. His primary treating physician, Dr. George Rakkar, issued a December 12, 2022, report which forms the basis for the claim of temporary disability. The matter came to Expedited Hearing on January 25, 2023, on the issues of temporary disability based on the reporting of Dr. Rakkar. Brought up for the first time at Trial was issue that the Board does not have jurisdiction over this claim, as it falls under the LHWCA (Longshore and Harbor Workers' Compensation Act). Defendants assert that the board does not have jurisdiction and that this issue is a threshold issue.

Davis v. Department of Labor and Industries of the State of Washington (1942); Continental Maritime of San Diego v. WCAB (Holloway) (1995) 60 CCC 491

Concurrent jurisdiction applies when any work is done on land by a maritime worker, based on case law including Davis and Continental Maritime.

The WCAB applied these precedents to find concurrent or exclusive jurisdiction over the applicant's claim.

From the decision · page 4In 1942, the U.S. Supreme Court's decision of Davis v. Department of Labor and Industries of the State of Washington (1942)( 8 CCC 25, 28.)declared that there was no line between cases falling within federal or state jurisdiction, but "a twilight zone in which the employees must have their rights determined case by case." Within this "twilight zone," the court found concurrent jurisdiction between the LHWCA and state workers' compensation laws.

Labor Code Section 4062.5(a)

Labor Code Section 4062.5(a) requires a panel QME evaluation when there is an objection to a treating physician's medical determination.

The WCAB noted defendants pursued the panel QME process after objecting to Dr. Rakkar's report.

From the decision · page 5Defendants next appeal the determination that temporary disability is owed based on the reporting of Dr. Rakkar. Defendants note that under the 14th Amendment of the U.S. Constitution, they are entitled to due process, and seem to imply that their right to due process was violated in this matter. We do not see how that is true. Defendants have not been stopped from pursuing their remedies under the Labor Code to take their disagreement about the finding of temporary disability to a Panel QME. Labor Code Section 4062.5 (a) does allow a party to obtain a panel QME where a medical evaluation is requires to resolve any dispute. Defendants have pursued that remedy, as at the time of Trial, a Panel QME evaluation had been set. Further, Defendant was not deprived of their right to contest the findings of the PTP. They timely objected to the reporting of Dr. Rakkar and proceeded to the panel process. They also sought a supplemental report from Dr. Rakkar to address concerns that they had.

Labor Code Section 4650

Labor Code Section 4650 requires payment of temporary disability within 14 days of knowledge of injury and disability.

The WCAB explained the timing requirements for temporary disability payments and employer obligations.

From the decision · page 12The timing of payments is established in Labor Code Section 4650, and it provides that the first payment of temporary disability payments must be made no later than 14 days after knowledge of the injury and disability. The treating physician is the appropriate source of an opinion on the anticipated duration of disability, and the employer can verify when the employee may return to work. Payment is required by the 14th day of lost time and written medical opinions are not a prerequisite to payment. The employer may, if they are unable to make a determination within the 14 days if temporary disability is owed, may issue a "delay letter" explaining why payments cannot be made within the 14-day period, what other information is required, and when the employer expects to have the requisite information. Labor Code 4650(d) and 8 C.C.R. 9812(a)(2). If the employer cannot decide by this original date, the employer must issue another delay issue no later than the date of the original determination.

Huston v. WCAB (1979) 44 CCC 798; Western Growers Insurance Co. v. WCAB (Austin) (1993) 58 CCC 323

Temporary disability determinations must be based on substantial medical evidence and are questions of fact for the appeals board.

The WCAB relied on these cases to uphold the finding of temporary disability based on Dr. Rakkar's report.

From the decision · page 11Temporary disability determinations must be based on substantial medical evidence. The employee bears the burden of proving his or her entitlement to these benefits. Whether an employee is temporarily disabled is a question of fact, which needs to be proved by a preponderance of evidence. LC 3202.5; Western Growers Insurance Co. v. WCAB (Austin) (1993) 58 CCC 323, 327.

Defendants did not rebut or address concurrent jurisdiction case law; their argument was conclusory and unsupported.

From the decision · page 5Defendants do not offer any cases or arguments that rebut or even address the possibility of concurrent jurisdiction. The argument that the WCAB lacks jurisdiction is conclusory and does not hold up against the litany of cases that have given us guidance on how to proceed in fact patterns just as the current one. The undersigned remains of the mind that the WCAB has either exclusive or concurrent jurisdiction, and either is sufficient.

Defendants did not provide rebuttal medical evidence to Dr. Rakkar's report and failed to show applicant capable of returning to work.

From the decision · page 6Defendants argue that the reporting of Dr. Rakkar is not substantial medical evidence, which I have addressed in my opinion on decision. Defendants have not offered any evidence, whatsoever, indicating that the applicant is capable of returning to work. They have not provided rebuttal reports to those of Dr. Rakkar. They point out that the applicant had a prior injury, shortly before his industrial injury, to the same body part. (Petition for Reconsideration page 3, lines 1-7). The implication seems to be that perhaps the need for treatment and/or temporary disability is due to this pre-existing injury. However, this claim is accepted, and neither medical treatment nor temporary disability are apportionable. If the uncontroverted medical evidence establishes that an employee is still temporarily disabled, the appeals board does not have substantial evidence to hold that the employee is not entitled to temporary disability. LeVesque v. WCAB (1970) 35 CCC 16.

Applicant had minimal treatment and no imaging or surgery prior to Dr. Rakkar's report; defendants were not diligent in providing benefits.

From the decision · page 6Again, the undersigned does not know upon which authority defendants rest their argument, as it is well understood that the workers' compensation system is a benefits delivery system. The applicant has suffered an admitted injury to his shoulder. (MOH and SOE page 2 lines 7-12). Dr. Rakkar, in his report dated December 12, 2022, noted that the applicant has had "minimal treatment" and has not had any imaging, surgical referral, or physical therapy. (Applicant's Exhibit 1). He requests an MRI, notes that the applicant may need an injection, notes a possible orthopedic referral, and indicates that PT will be held pending imaging studies. It appears that, in this respect, defendants have not been diligent in their provision of benefits, in the form of treatment, to the applicant, and yet they wish for him to return to work with restrictions that they believe are reasonable.