In this unpublished decision, the Court berated the defense for its transparent arguments. The worker had submitted an offer of proof at trial, without objection, that he would testify he retired solely because of the effects of his work injury.
Because of the worker's alleged "retirement," the employer had refused to pay temporary disability for any periods after the worker stopped working despite a finding of TTD status from a QME.
The case was submitted on the record at trial without testimony.
The offer of proof included with submission of the case stated that the worker, who was 61 when he stopped working,
"...would testify that he retired because he could not do his work duties and not because he intended to take himself off the labor market" [and that he] "would have continued working but for his work injury."
After submission, the WCJ issued an Award which included a finding that temporary disability benefits were due, that an EDD lien must be reimbursed (the employer had objected to paying it since the worker had retired) and that the old permanent disability rating schedule was to be used.
On reconsideration, the WCAB affirmed the WCJ.
The employer petitioned for a writ of review contending error on all three findings by the WCJ: That the WCAB erred by applying the wrong permanent disability rating schedule, by awarding temporary disability during a period when the employee had retired, and by awarding reimbursement to the Employment Development Department.
The Fifth District Court of Appeal had little patience with the defense's arguments.
Regarding which rating schedule to use, the employer had argued - among other things - that the WCJ's reliance on an "unidentified" QME report was not substantial evidence.
In response, the appellate court accused the defense of not even bothering to read the WCJ's Opinion on Reconsideration in which the judge explained that, since only ONE QME report was entered into evidence, his failure to "identify" the doctor who wrote the report was a ridiculous ground for a "not substantial evidence" argument for why the new PDRS should have been used.
Adding insult to injury, the appeals court explained that, in fact, all THREE exceptions for using the "old" PDRS under Labor Code Section 4660(d) were present in this case!
(The Court also took the opportunity to emphasize its support for the Genlyte line of cases - in which it was held that "permanent and stationary" status is NOT required before 2005 in order to use the 1997 PDRS as long as the existence of permanent disability is found pre-2005.)
Regarding the grant of temporary disability when the defense claimed the employee had voluntarily retired, the Court said that with the defense failing to ever object to the offer of proof (that the only reason the worker retired was because of his work injury) - and then expressly agreeing "to submit this matter on the existing record without need for live testimony" - it was ludicrous to now attempt to disregard the offer of proof and characterize it as "self-servicing."
Accordingly, it affirmed the decision to award temporary disability benefits.
Finally, the Court indicated that its ruling on the propriety of the temporary disability payments dispensed with the last argument by the defense regarding whether EDD's lien should have been reimbursed. The employer had argued that, since no TD was due because the employee had "voluntarily" retired, the EDD lien was no good.
The Court then remanded the case for an additional award of attorneys fees for the applicant's attorney on appeal.
The case is Sensient Technologies v. WCAB.
To read the full opinion,
PLEASE CLICK HERE.
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