ADJ17819410 · July 7, 2025

Applicant was entitled to separate 4850 benefits for two distinct injuries with overlapping but partially non-overlapping periods of temporary disability, supported by medical evidence and legal precedent.

From the decision · page 3The instant matter concerns payment of Labor Code § 4850 benefits - as stipulated by the parties, applicant is a firefighter, which entitles him to § 4850 benefits in lieu of temporary disability for a period of up to one year. Essentially, applicant claims entitlement to § 4850 benefits for the period from October 10, 2023 to the present and continuing. As evidenced by the Benefit Printout, admitted into evidence as defendant's exhibit "D", defendant has allegedly paid applicant full salary § 4850 benefits from October 10, 2022 through October 9, 2023, but then switched to payment of "state rate" temporary disability benefits as of October 10, 2023.

Applicant was temporarily totally disabled for the cumulative trauma injury starting August 10, 2023, overlapping with specific injury disability until October 9, 2023, then continuing independently until return to work in May or June 2024.

Favours Applicant prevailed

This established entitlement to separate 4850 benefits for the cumulative trauma case beyond the exhaustion of benefits for the specific injury case.

From the decision · page 7That is not what has happened in the instant cases. Continuing with the same analogy, but substituting a maximum one year period of § 4850 pay per case, in the instant cases, applicant underwent shoulder surgery as the result of his specific injury case and became temporarily disabled for that reason as of October 09, 2022. At that point, the § 4850 hourglass for the specific injury case overturned. Independently, as the result of the cumulative trauma case, Dr. Luciano found

Dr. Luciano found applicant temporarily totally disabled for the cumulative trauma injury starting August 10, 2023, overlapping with specific injury disability but entitled to separate 4850 benefits for the non-overlapping period.

Dr. Luciano's evaluations and reports clarified the periods and causes of temporary disability, supporting separate 4850 benefits entitlement.

From the decision · page 3These consolidated matters have returned to the undersigned following development of the record with IME Luciano. Applicant has testified on his own behalf. Following conclusion of testimony, the matter was submitted for decision, and Findings and Award issued on February 6, 2024. Responsive thereto, defendant filed a Petition for Reconsideration, alleging in part that additional evidence not originally available should be considered. The Court agreed and rescinded the Findings and Award by Order dated March 8, 2024. The matters were heard at conference, and then went off-calendar for further development of the record. These cases returned to the trial calendar following that additional discovery, and additional evidence was taken into the record. The parties were given an opportunity to and did file additional posttrial briefs, and the matter was taken back under submission as of January 6, 2025.

Dr. Simic initially did not find applicant temporarily totally disabled for the hand injury prior to surgery authorization.

Dr. Simic's report showed applicant was off work for left shoulder surgery but not temporarily totally disabled for hand injury at initial evaluation.

From the decision · page 5Applicant first saw Dr. Simic for consultation regarding his hand on August 24, 2023. As Dr. Simic related in that report, applicant was "off-work for left shoulder surgery." Dr. Simic felt that applicant was indicated for hand surgery and requested authorization for same. The work status section of this report states, "return to work normal duty on: 08/24/23". It is therefore apparent that as of this initial evaluation, prior to the authorization of the surgery, Dr. Simic did not find applicant to be TTD as a result of his hand.

Dr. Velios performed left elbow surgery and found applicant temporarily totally disabled from the surgery, attributable to both cumulative trauma and specific injury cases.

Dr. Velios' surgical and post-surgical findings supported applicant's temporary total disability status from elbow surgery related to both claims.

From the decision · page 6Dr. Luciano's subsequent September 10, 2024 report does not really offer additional explicit clarity as to the TTD periods, but it does provide critical contextual information. On page 3 of the report, Dr. Luciano notes that applicant underwent elbow surgery "following left shoulder surgery for the specific September 1, 2022 event... " Thus, although the left upper extremity is involved in the cumulative trauma case, the shoulder surgery which caused applicant's TTD status was the result of applicant's specific injury case.

Labor Code section 4850

Labor Code section 4850 provides salary continuation benefits for certain public safety employees disabled by work-related injury or illness for up to one year.

Applicant is entitled to 4850 benefits for distinct injuries with overlapping but partially non-overlapping disability periods.

Foster v. Workers' Comp. Appeal Bd., 73 Cal. Comp.Cases 466

Temporary disability benefits for concurrent injuries run concurrently and do not extend beyond 104 weeks total.

Concurrent temporary disability benefits for multiple injuries run concurrently, limiting total benefits to 104 weeks.

From the decision · page 7In the seminal case of Foster v. Workers' Comp. Appeal Bd., 73 Cal. Comp.Cases 466, this was interpreted to mean that if an applicant became concurrently temporarily disabled as the result of more than one injury, the 104 week maximum period allowed as the result of each injury would run concurrently for the time period that both injuries were responsible for applicant's disabled status. As mentioned in Foster, the purpose of temporary disability benefits is to replace lost earnings, not to compensate for an incapacity to work and for physical impairment. Therefore, if an injury has rendered an applicant temporarily unable to work, to fulfill that purpose and replace the lost earnings, TD or equivalent benefits should ordinarily be payable to the applicant.

Applicant is separately entitled to 4850 benefits for each claim, but concurrent disability periods count against the maximum benefit period for each claim.

Applicant is entitled to separate 4850 benefits for each claim, with concurrent disability periods counting against the maximum period for each claim.

Applicant's credible and unrebutted testimony about hand injury and treatment history

From the decision · page 4Applicant testified that prior to the filing of his cumulative trauma claim in case ADJ17819410, he did not receive any treatment for his hand. Prior to the filing of his claim, a doctor never took him off of work because of his hand, nor did a doctor give him any work restrictions for it. He had surgery on his hand on September 29, 2023, and he was taken off of work for that reason. As of the time that he offered his testimony, he remained off of work. Applicant reiterated on cross examination that Dr. Velios did not treat his hand. He testified that other doctors had looked at it and told him that if it were to become painful, he could see a hand specialist, but that no affirmative steps were taken to treat the hand. Applicant's testimony was credible, unrebutted, and is corroborated by the medical evidence admitted into the record.