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"Bonnie Wilson" Date: January 23, 2026 2:05:00 PM Subject: Re: NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) Reply to list Reply to sender Print List: lawnet Sent By: Bonnie Binder-Wilson Reply To Sender Reply To List Search Settings Thank you!! Bonnie Binder Wilson, Esq. Wilson & Wisler, LLP Attorneys at Law 21 Maple Street Salinas, California  93901 Telephone: (831) 269-3787 Facsimile: (831) 269-3783 www.doubleulaw.com *************** PRIVATE AND CONFIDENTIAL **************** THIS ELECTRONIC MESSAGE TRANSMISSION IS A COMMUNICATION FROM THE LAW FIRM OF WILSON & WISLER, LLP.  THIS MESSAGE CONTAINS INFORMATION PROTECTED BY THE ATTORNEY/CLIENT PRIVILEGE AND IS CONFIDENTIAL OR OTHERWISE THE EXCLUSIVE PROPERTY OF THE INTENDED RECIPIENT OR WILSON & WISLER, LLP.  THIS INFORMATION IS SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY THAT IS THE INTENDED RECIPIENT. From: Hollie Rutkowski (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> Sent: Friday, January 23, 2026 11:24 AM To: Statewide List Service <lawnet@lawnet.caaa.org> Subject: Re: [lawnet] NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) List: lawnet Sent By: Hollie Rutkowski Reply To Sender Reply To List Search Settings J.C. Penney Company v. Workers' Compensation Appeals Board (2009) 74 Cal. Comp. Cases 826, 830, 2009 Cal. Wrk. Comp. LEXIS 201, *9-11, 175 Cal. App. 4th 818, 96 Cal. Rptr. 3d 469. July 07, 2009 at 12:00 AM C.A. 3rd C059760 The Third Appellate District annulled and remanded a decision of the Workers’ Compensation Appeals Board. The court held that an employer’s failure to make a timely challenge to an adverse medical opinion barred it from later seeking a credit for overpayments. James Edwards was injured on July 23, 2003, while working for J.C. Penny Company. Edwards began receiving temporary disability indemnity payments immediately. These payments continued through March 14, 2007. On February 5, 2007, Edwards’s physician opined that Edwards’s condition was permanent and stationary and had probably been so since about August 2005. J.C. Penney thereafter sought a credit for the temporary disability indemnity payments received by Edwards from August 2005 through March 14, 2007. Following hearing, a workers’ compensation administrative law judge granted J.C. Penney’s request for a credit only as to the period from February 5 through March 14, 2007. The adminstrative law judge (ALJ) found that Edwards’s temporary disability ceased on February 5, when his physician’s opinion issued, and not prior. J.C. Penney was accordingly not entitled to a credit for the period preceding that date. The Workers’ Compensation Appeals Board (WCAB) affirmed the ALJ’s order. The court of appeal annulled and remanded the WCAB’s decision, holding that Labor Code §4062 barred the overpayment credit sought by J.C. Penney. Section 4062 provides, in pertinent part, “If [the] employer objects to a medical determination made by the treating physician concerning any medical issues … , the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney ….” The court found that a treating physician’s determination that an injured worker continues to be temporarily totally disabled is a medical determination subject to §4062’s objection requirement. As the court saw it, the evident purpose of the time limits in §4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms. This purpose cannot be attained if a party such as J.C. Penney can fail to object in a timely manner and nonetheless thereafter tender a claim that contradicts a medical determination subject to the objection requirement of the statute. Accordingly, when J.C. Penney failed to object to a medical determination of temporary total disability by Edwards’s treating physician within the time limit provided in §4062, it lost the right to object to that determination in the future. Although §4062 permits an extension of the time limits for good cause, J.C. Penney made no such showing. However, the court found, the record did not support a denial of credit for the entire time period. The most recent medical evaluation prior to February 2007 stated that Edwards was “[t]emporarily totally disabled through June 2006.” Accordingly, the reach of the statute extended only that far. Insofar as the denial of J.C. Penney’s requested credit was predicated on §4062, it could not be justified beyond that point. The court held further that the record did not support an equitable bar to the overpayment credit. Absent a showing that J.C. Penney was actually aware, or was even in a superior position to have known, that Edwards’s condition had become permanent and stationary prior to February 2007, equitable estoppel did not apply. · * * * * * * Opinion No. C059760. July 7, 2009. Mullen Filippi and Gregory T. Jones for Petitioners. Neil P. Sullivan for Respondent Workers' Compensation Appeals Board. Metzinger and Associates and Ronald M. Metzinger for Respondent James Edwards. OPINION BUTZ, J. Petitioners J.C. Penney Company and its insurer American Home Assurance Company, adjusted by AIG Claim Services (collectively J.C.  Penney), contend that respondent the Workers' Compensation Appeals Board (WCAB) erred in limiting a credit for overpayment of temporary disability indemnity. Entitlement to temporary disability indemnity ends when the condition of the injured worker becomes permanent and stationary. J.C. Penney sought the credit against the permanent disability indemnity award of injured worker respondent James Edwards. J.C. Penney claimed that his condition became permanent and stationary some 19 months before it stopped paying temporary disability indemnity. The WCAB limited the requested credit on the ground that J.C. Penney failed to object, under Labor Code section 4062 ,  to the ongoing determinations of Edwards's treating physicians that he remained temporarily totally disabled. J.C. Penney argues that the WCAB erred because the treating physicians' determinations were based on an incorrect legal theory and do not afford substantial evidence of ongoing temporary disability. The argument is unpersuasive, but the WCAB's rationale does not support the amount of the limitation of the credit. We shall annul the award and remand for further proceedings to determine the appropriate credit. Undesignated statutory references are to the Labor Code. Section 4062 , as applicable here, provides: "(a) If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues [with exceptions not applicable here], the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the repor. . . . These time limits may be extended for good cause or by mutual agreement. If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2 [selection of agreed medical examiner], and no other medical evaluation shall be obtained. . . ." FACTUAL AND PROCEDURAL BACKGROUND On July 23, 2003, Edwards was on a ladder painting a J.C. Penney store in Sacramento. He fell and was injured. He suffers chronic pain in his left elbow, lower back, and right knee and leg. Edwards's treating physician after December of 2003 was Dr. Connie Kimble. She referred him to Dr. David Coward who performed knee surgery on February 9, 2005. She also referred him to Dr. Praveen Prasad, a neurosurgeon. On October 24, 2005, Dr. Prasad recommended a back fusion surgery. On December 20, 2005, the initial request for authorization of the surgery was denied in a utilization review under section 4610 . Edwards was then referred to Dr. Laura Anderson, a neurosurgeon, for a second opinion on the surgery recommended by Dr. Prasad. On February 14, 2006, Dr. Anderson advised against the recommended fusion surgery. She did opine that an alternative decompression surgery would be appropriate "if the patient at some point decides that the right leg is disabling." On April 28, 2006, Edwards again saw Dr. Kimble, who noted that his use of pain medication had increased. She reported: "Hopefully, this is short-term in that his surgery will be approved, and his pain level will be reduced." Edwards saw Dr. Kimble again on May 24, 2006. She noted for the first time in her report for this visit that he had met with Dr. Anderson who had recommended against the fusion surgery. Dr. Kimble recommended an evaluation for an implanted pump to deliver pain medicine to the spinal cord. Her progress report asserts that Edwards remains: "Temporarily totally disabled through June 2006." There are no subsequent progress reports from treating physicians in the record until April of 2007. At some point prior to February 5, 2007, the parties apparently agreed to a medical examination (see § 4062.2 ) by Dr. Peter Mandell concerning contested medical issues. On that date Dr. Mandell examined Edwards and prepared an evaluation report. In pertinent part, Dr. Mandell opined that Edwards's condition was permanent and stationary and "probably became so six months after a RIGHT knee arthroscopy which he had on 2/9/05." There is no documentary evidence in the record of the request for this medical evaluation. Edwards had been receiving temporary disability indemnity payments from the time of his injury. These payments ended March 14, 2007. Edwards's case came on for hearing before a workers' compensation administrative law judge (ALJ) on January 22, 2008. Edwards testified concerning his medical history and the nature of his current condition. No inquiry was made about the decision on back surgery or the claimed overpayment. The ALJ rendered a decision and award on April 18, 2008. He found that the date Edwards's medical condition became permanent and stationary was the day he was examined by Dr. Mandell, reasoning as follows: "Applicant had been evaluated by Dr. Mandell as an agreed medical examiner February 5, 2007. As noted, Dr. Mandell felt that he was permanent and stationary. . . . "An injured worker is entitled to temporary disability indemnity while he is in his healing period. ( Bstandig v. WCAB (1977) 42 [Cal.Comp.Cases] 114,  118 [ 68 Cal.App.3d 988 , 137 Cal.Rptr. 713 ].) Applicant was clearly in his healing period while he was awaiting authorization for surgery proposed by Dr. Prasad. After that surgery was not authorized, Dr. Kimble indicated on a recurring basis that he continued to be temporarily disabled. . . . "If [J.C. Penney] disputed [Edwards's] temporary disability status at any time, it could have objected to Dr. Kimble's findings under Labor Code [section] 4062. Although I can reasonably infer there was an objection at some point in time and that Dr. Mandell was agreed upon to resolve that issue (and, apparently, other issues) it is contrary to the spirit of [section] 4062 to permit a retrospective determination of a permanent and stationary date when there was substantial evidence to support ongoing temporary disability. "Based on the record presented to me Dr. Mandell's implied opinion that [Edwards] was permanent and stationary the date he saw him supports a determination that temporary disability ceased at that time, but not earlier." In an amended award and order of April 30, 2008, the ALJ found that there had been an overpayment of temporary disability indemnity for the period from "February 6, 2007, through March 14, 2007." J.C. Penney filed a petition for reconsideration on May 16, 2008. J.C. Penney contended that there was no substantial evidence to support the finding that Edwards's medical condition achieved permanent and stationary status on the date he was examined by Dr. Mandell. J.C. Penney argued the only evidence on permanent and stationary status was Dr. Mandell's opinion that the date was August 9, 2005. J.C. Penney made no mention of the remarks of the ALJ about "the spirit of [section] 4062." The WCAB, in pertinent part, affirmed the award and order, adopting and incorporating the reasoning of the ALJ as related above. J.C. Penney filed its petition for writ of review and we issued the writ on October 16, 2008. DISCUSSION I. Section 4062 Bars Part of the Overpayment Credit J.C. Penney Sought Neither J.C. Penney nor Edwards in their initial memoranda in this court addressed the reasoning that retrospective determination of a permanent and stationary date would be inconsistent with "the spirit of section 4062 ." We asked them to address this in supplemental briefs. J.C. Penney contends that the WCAB erred in basing denial of the requested credit on failure to object under section 4062 . J.C. Penney notes that the ALJ's remarks about section 4062 barring a retrospective determination of a permanent and stationary date included the phrase "when there [i]s substantial evidence to support ongoing temporary disability." J.C. Penney argues that the award cannot be upheld under this logic because Dr. Kimble's ongoing findings do not constitute "substantial evidence to support ongoing temporary disability." However, the denial of the credit under section 4062 does not require a finding of substantial evidence of ongoing temporary disability and the WCAB did not err in basing a denial of the requested credit on that statute. The statutory duty to pay temporary disability compensation continues during the period in which an injured worker, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury. ( Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159, 168 [ 193 Cal.Rptr. 157 , 666 P.2d 14 ].) The duty ends when the worker is able to return to work or when his or her medical condition becomes permanent and stationary. (E.g., Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292 [ 135 Cal.Rptr.2d 665 , 70 P.3d 1076 ].) "A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment." ( Cal. Code Regs., tit. 8, § 10152 ; see id. , § 9785, subd. (a)(8).) This is so even though further medical treatment may be required to relieve the effects of the injury. (See, e.g., 2 Witkin, Summary of Cal. Law (10th ed. 2005 ) Workers' Compensation, § 287, pp. 895-897.) Thus, "temporarily disabled" and "permanent and stationary" are contradictory propositions. Edwards's condition became permanent and stationary when it was unlikely to change substantially in the next year with or without medical treatment, even though he continued to require medical treatments to alleviate pain caused by his industrial accident. Accordingly, a medical opinion that he continued to be temporarily totally disabled would be legally untenable unless there was evidence showing some likelihood of substantial change in his condition within the year, e.g., through medical treatment such as back  surgery. The medical determination by Dr. Kimble that Edwards was temporarily totally disabled, i.e., his condition was not yet permanent and stationary, is not substantial evidence of ongoing temporary disability without a foundation of some likelihood of substantial change in the ensuing year. J.C. Penney and Dr. Mandell's report assume that permanent and stationary status was reached when Edwards had recovered from his knee surgery, because, as it turns out, authorization for back surgery was denied. However, this retrospective view fails to note that, while the possible back surgery was in dispute, Edwards was undergoing medical diagnostic procedures. Thus his condition could be determined not yet to be permanent and stationary, until further back surgery was ruled out. (See, e.g., Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd., supra , 34 Cal.3d at p. 168 ; 1 St. Clair et al., Cal. Workers' Compensation Law and Practice (Dec. 2008 supp.) Temporary Disability, § 7:41, pp. 7-17 to 7-18.) However, the WCAB's denial of the credit under section 4062 does not rest on a finding that Dr. Kimble's opinion of ongoing temporary total disability is substantial evidence that Edwards's condition was not yet permanent and stationary. If that were the import of the WCAB's reasoning, no purpose would be served by the reference to section 4062 . The ALJ would have found ongoing temporary disability directly, based on Dr. Kimble's opinion. It is only because Dr. Mandell's reasoning rebutted the apparent view of Dr. Kimble, that treatment to manage pain alone sufficed to warrant temporary disability, that there was any occasion to invoke "the spirit of section 4062 ." The WCAB's decision to deny a full credit for overpayment necessarily rests on the theory that the policy of section 4062 bars recovery of an overpayment, rather than a theory that there was no overpayment. The phrase "when there is substantial evidence to support ongoing temporary disability" is superfluous, but "[s]uperfluity does not vitiate" (Civ. Code, § 3537 ). The rationale of the award turns on public policy manifest in section 4062 . The statute provides, in pertinent part, "If [the] employer objects to a medical determination made by the treating physician concerning any medical issue . . ., the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney. . . . These time limits may be extended for good cause or by mutual agreement." ( § 4062, subd. (a) .) A determination by a treating physician that an injured worker continues to be temporarily totally disabled is a medical determination subject to the objection requirement of Labor Code section 4062 . (See Cal. Code  Regs., tit. 8, § 9785 .) The question is: What is the effect of failing to object within the "time limits" of that statute? California Code of Regulations, title 8, section 9785 addresses the reporting duties of the primary treating physician and contains the following pertinent definitions: "(a) For the purposes of this section, the following definitions apply: "(1) The `primary treating physician' is the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter. . . . [¶] . . . [¶] "(4) `Medical determination' means, for the purpose of this section, a decision made by the primary treating physician regarding any and all medical issues necessary to determine the employee's eligibility for compensation. Such issues include but are not limited to the scope and extent of an employee's continuing medical treatment, the decision whether to release the employee from care, the point in time at which the employee has reached permanent and stationary status, and the necessity for future medical treatment. [¶] . . . [¶] "(g) When the primary treating physician determines that the employee's condition is permanent and stationary, the physician shall, unless good cause is shown, report within 20 days from the date of examination any findings concerning the existence and extent of permanent impairment and limitations and any need for continuing and/or future medical care resulting from the injury. . . ." The requirement for an objection under section 4062 is stated in mandatory language: "the objecting party shall notify the other party in writing. . . ." The ordinary meaning of a mandatory time limit is that once the prescribed time has passed the action subject to the time limit may no longer be taken. When J.C. Penney failed to object to a medical determination of temporary total disability by Edwards's treating physician within the time limit provided in section 4062 , it lost the right to object to that determination in the future. The evident purpose of the time limits in section 4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms. This purpose cannot be attained if a party such as J.C. Penney can fail to object in a timely manner and nonetheless thereafter tender a claim that contradicts a medical determination subject to the objection requirement of the statute. If either employer or employee fails to raise a dispute about a medical determination within the ambit of section 4062 within the prescribed time, they may not attack that determination thereafter. Section 4062 permits extension of the time periods "for good cause." ( § 4062, subd. (a) .) However, J.C. Penney offered no claim of good cause for failure to object in the WCAB proceedings. We will not speculate about the nature of good cause in the abstract. It suffices to say that ignorance of a legal theory of rebuttal of a medical determination is not good cause for failure to object. If that were allowed, the exception would swallow the rule. We find the core reasoning of the WCAB correct. "[I]t is contrary to the spirit of [section] 4062 to permit a retrospective determination of a permanent and stationary date" when to do so would be to allow a belated objection to a medical determination by the treating physician. However, that does not justify extending the permanent and stationary date until the time that the agreed medical examiner rendered an opinion that the worker's condition was permanent and stationary. The limitation under section 4062 is to contradiction of the unchallenged medical determination of the treating physician. The last such determination before the agreed medical examiner process was invoked is Dr. Kimble's report that Edwards was "[t]emporarily totally disabled through June 2006." Accordingly, the reach of the statute extends only that far. Insofar as the denial of J.C. Penney's requested credit is predicated on section 4062 , it cannot be justified beyond that point on this record. II. The Record Does Not Support an Equitable Bar to the Overpayment Credit Edwards contends that an award denying any credit prior to Dr. Mandell's finding on February 5, 2007, should be upheld on an estoppel rationale discussed in Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [ 168 Cal.Rptr. 884 ] ( Maples). J.C. Penney replies that the factual record in this case does not support an estoppel. J.C. Penney has the more persuasive position. In Maples the court held that the WCAB erred in permitting the insurance carrier for the employer to claim an overpayment of temporary disability indemnity payments against petitioner's permanent disability award. ( Maples, supra , 111 Cal.App.3d at pp. 829-830 .) The carrier had received a medical evaluation opinion in November of 1977 that found the employee to be permanent and stationary. ( Id. at p. 830.) However, the first notice the carrier gave the employee of the opinion was in a supplemental medical report from the same doctor, filed and served in September 1978, reaffirming the permanent and stationary status opinion as of the date of the prior examination and report. ( Ibid. ) The carrier stopped paying temporary disability indemnity as of August 9, 1978, but did not immediately advise the employee of the reason for the termination. ( Maples , at pp. 830-831.) The Maples opinion held the carrier estopped, as a matter of law, from claiming that temporary disability ended prior to the employee's receipt of the report containing the opinion his condition was permanent and stationary. ( Maples, supra , 111 Cal.App.3d at p. 839 .) The opinion notes that the carrier  had violated provisions of the Labor Code and WCAB rules in failing to timely file with the appeals board and serve on the employee the original medical report and in failing to file a petition to terminate temporary disability indemnity within 10 days of the cessation of payments. ( Id. at pp. 834-835.) The full disclosure of medical reports as required by WCAB rules is essential to the expeditious determination of the controversies submitted to the appeals board and failure to disclose is prejudicial to the injured worker. This prejudice is, inter alia, that the allowance of credit for a temporary disability overpayment can be disruptive of the purpose of permanent disability indemnity, delay receipt by the injured worker of additional workers' compensation benefits and his return to employment, and prevent the worker's doctor from recommending further medical or surgical procedures. ( Id. at pp. 836-837.) J.C. Penney correctly argues that the Maples estoppel theory is inapplicable. Estoppel requires, inter alia, a false representation or concealment of material facts made with knowledge of the facts. (See, e.g., 13 Witkin, Summary of Cal. Law (10th ed. 2005 ) Equity, § 191, pp. 527-528.) In Maples the employer was aware of and improperly suppressed a medical evaluation opinion that the employee was permanent and stationary. However, there is no evidence in this case that J.C. Penney was actually aware, or was even in a superior position to have known, that Edwards's condition had become permanent and stationary before Dr. Mandell's report. Estoppel is not the only equitable principle the WCAB may use in the exercise of discretion to deny a credit. (See Maples, supra , 111 Cal.App.3d at pp. 837-838 .) The WCAB generally has some degree of discretion to grant or deny credit for overpayments under section 4909 . (See, e.g., Genlyte Group, LLC v. Workers' Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 724 [ 69 Cal.Rptr.3d 903 ]; Herrera v. Workmen's Comp. App. Bd. (1969) 71 Cal.2d 254, 258 .) However, we cannot sustain the denial of a credit beyond the limit based on section 4062 on equitable grounds. The only ground asserted in the WCAB award is section 4062 . The WCAB did not otherwise assess the relative equities in either recognizing or denying full or partial credit. Section 4909 provides: "Any payment, allowance, or benefit received by the injured employee during the period of his incapacity, or by his dependents in the event of his death, which by the terms of this division was not then due and payable or when there is any dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid. The acceptance of any such payment, allowance, or benefit shall not operate as a waiver of any right or claim which the employee or his dependents has against the employer." DISPOSITION The decision and award of the WCAB is annulled and the matter remanded for further proceedings to determine the amount of the credit to J.C. Penney for overpayment of temporary disability indemnity in accord with the views expressed in this opinion. The parties are to bear their own costs before this court. ( Cal. Rules of Court, rule 8.493(a)(1)(B) .) Nicholson, Acting P. J., and Hull, J., concurred. TDOP N0 credit against PD Santa BarbaraCounty Education Office v. WCAB (1998) 63 Cal. Comp. Cases 663 Santa Barbara County Education Office, Petitioner v. Workers Compensation Appeals Board, Belinda Gomez, Respondents. Civil No. B119492- Court of Appeal, Second Appellate District, Division Six 63 Cal. Comp. Cas 663; 1998 Cal. Wrk. Comp. LEXIS 4657 April 1, 1998 SUBSEQUENT HISTORY: [**1] Review Denied May 13, 1998 PRIOR HISTORY: W.C.A.B. No. SBA 79618-WCJ Robert Ebenstein SBA WCAB Panel: Commissioners Gannon, Heath, Casey DISPOSITION: Petition for writ of review denied HEADNOTE: Penalties-Delay in Payment of Benefits-WCAB imposed 10-percent penalty under Labor Code § 5814 [Deering's] for defendant's failure to pay temporary disability after date that defendant's unilateral taking of credit against temporary disability for overpayment of permanent disability became contested, despite defendant's earlier agreement with pro per applicant that defendant could take such a credit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 7.04[9][a], 10.40[3][c], 27.12[2][c].] Applicant sustained a CT injury to her wrists during the period 4/12/95 through 11/12/95, while employed by Defendant Santa Barbara County Education Office. [*664] A Stipulated Award was issued in which Applicant was awarded future medical treatment. After the Award was issued, Applicant sustained another period of TD on an industrial basis. During Applicant's period of TD, she received an overpayment of benefits in the sum of $649.65. Applicant, who proceeded in pro per, agreed to repay this sum at the rate of $50 per month. [**2] Subsequently, the parties agreed that the overpayment would be credited against Applicant's TD. On 8/8/97, Applicant retained counsel. Several days later, Applicant's counsel contacted Defendant, indicating it was his position that there was no basis for the taking of credit against Applicant's TD. Defendant continued to take credit and refused to pay TD. Applicant filed a Petition for Penalty on all TD benefits, for Defendant's failure to pay TD for the period 7/30/97 through 8/21/97. Defendant admitted that Applicant was temporarily totally disabled on an industrial basis, but contended that it had a right to take a credit for prior overpayments of TD and PD and that a penalty Page 1 should not be imposed. The WCJ issued F&A, finding that Defendant had unreasonably delayed payment of TD and awarded Applicant a penalty for the delay. Defendant filed a Petition for Reconsideration, relying on Gomez v. City of Long Beach (1985) 50 Cal. Comp. Cases 639 (WCAB en banc opinion), and contending that the finding was neither supported by substantial evidence nor supported by the law. In his report on reconsideration, the WCJ acknowledged the agreement between Applicant and Defendant, and admitted [**3] that Defendant had a good faith legal basis to take a credit until the time that it received the communication from Applicant's counsel contesting Defendant's right to take credit. Thereafter, the agreement between Applicant and Defendant became null and void, and Defendant was required to justify any further delay. According to the WCJ, Defendant provided no justification or showing of genuine doubt as to its liability to pay TD. The WCJ cited Rohrback v. W.C.A.B. (1979) 144 Cal. App. 3d 896, 193 Cal. Rptr. 558 [48 Cal. Comp. Cases 78], Robertson Prezioso, Inc. v. W.C.A.B. (Lee) (1988) 53 Cal. Comp. Cases 557 (writ denied), and Pierce Enterprises v. W.C.A.B. (Colchado) (1995) 60 Cal. Comp. Cases 1052 (writ denied), as being dispositive of the issue in this case. He noted that, here, Defendant knew Applicant was entitled to the TD benefits in question, and knew that its claim for credit was being contested. Yet, the WCJ pointed out, Defendant believed that it had a right to withhold benefits without a court order even though there would have been substantial PD benefits from which Applicant could have paid the credit. The WCJ distinguished the facts in Gomez, where the WCAB declined [**4] to award a penalty for a unilateral credit because the law was unclear as to how to assert a credit for overpayment of benefits. He noted that the WCAB made it clear in that case that such unilateral credits were improper and would not be tolerated in the future. The WCJ concluded that Defendant's unilateral taking was inappropriate. The WCAB denied reconsideration, adopting and incorporating the WCJ's report without further comment. [*665] Defendant filed a Petition for Writ of Review, contending in pertinent part that it was justified in taking a credit for overpayment and therefore should not have been penalized for failing to pay TD. Relying primarily on the decision in Gomez, Defendant contended that when an overpayment occurs, genuine legal doubt as to liability is present. Applicant responded, contending that Defendant had no legal right to unilaterally take credit and was, therefore, subject to the penalty imposed. Applicant also requested attorney's fees pursuant to Labor Code § 5801 [Deering's]. WRIT DENIED and request for attorney's fees DENIED April 1, 1998. _______________________ COUNSEL: For petitioner-Stockwell, Harris, Widom & Woolverton, by Jeffrey T. Landres For [**5] respondent employee-Hourigan & Holzman, by David T. Holzman Gomez v. City of Long Beach (1985 WCAB en banc) Armando Gomez, Petitioner v. City of Long Beach, Self-Insured, Respondent 110886,110080 Workers Compensation Appeals Board 50 Cal. Comp. Cas 639; 1985 Cal. Wrk. Comp. LEXIS 4023 December 24, 1985 HEADNOTE: [**1] Penalties--Unreasonable Delay--Rehabilitation Benefits--Although defendant's unilateral stopping of vocational rehabilitation temporary disability payments in order to take credit for overpayment did not violate Labor Code section 5814 [Deering's] under the circumstances, the Board stated that such action will not be considered acceptable in the future. [See generally Hanna, Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, § 17.06.] Appeals Board En Banc Opinion COUNSEL: For petitioner--Cantrell & Green For respondent employer--Steven Hertz, Deputy City Attorney OPINION: Reconsideration was granted on July 6, 1983, for further study of the facts and law with respect to the Findings and Award and Findings and Order filed in these cases on April 15, 1983. A Petition for Reconsideration was filed by applicant Armando Gomez in which he questions the workers' compensation judge's (WCJ) finding that defendant employer did not unreasonably refuse or delay vocational rehabilitation temporary disability (VRTD) indemnity payments when it took credit for an overpayment. Applicant argues that the act of unilaterally stopping such payments to take credit in the fact of a Rehabilitation Bureau order requiring payment [**2] of maintenance during the rehabilitation plan violates Labor Code § 5814 [Deering's] n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ and, therefore, a 10% penalty should have been assessed. On the majority vote of the Board, the Chairman has reassigned this case to the Appeals Board En Banc for a Decision After Reconsideration. (§ 115.) For the following reasons, we conclude that defendant has not unreasonably refused or delayed the payment of benefits. Page 1 Applicant sustained industrial injuries while working as a carpenter for the city of Long Beach, permissibly self-insured, on March 9, 1979, (80 LB 110-086) and on April 11, 1980 (80 LB 110-080). On May 24, 1982, the Rehabilitation Bureau found him to be a qualified injured worker and ordered defendant to provide rehabilitation benefits including VRTD [*640] through the completion of the rehabilitation plan. (See the Rehabilitation Bureau's May [**3] 24, 1982, Decision and Order.) On July 19, 1982, defendant sent a letter to applicant (see applicant's exhibit II) claiming in essence that it paid VRTD indemnity from March 9, 1981, to April 10, 1982, at $175.00 per week when the actual weekly rate should have been $154.00. This resulted in an overpayment of $1,194.00 for which defendant stated it would take credit. Applicant's next temporary disability indemnity check would, therefore, be for the period beginning September 4, 1982. According to the Minutes of the December 20, 1982, Hearing, one of the issues raised was penalty for the "delay of temporary disability payments," applicant arguing that the unilateral taking of credit by defendant created an unreasonable delay in payment of compensation. The WCJ issued decisions on April 15, 1983. In 80 LB 110-086 he found that the March 9, 1979, injury caused no permanent disability. In 80 LB 110-080 he found that the April 11, 1980, injury resulted in temporary disability from May 16, 1980, to December 1, 1982 he further found that from April 12, 1980, to April 11, 1982, the temporary total disability indemnity rate was $154.00 per week and thereafter was $175.00 per week. He also [**4] concluded that there was "no basis for a penalty," explaining in his "Statement of Reasons for Decision" that "[d]efendant had a genuine basis to believe that applicant was overpaid. Indeed, defendant did in fact overpay ... [applicant]. Therefore, defendant had a legal basis to terminate further payments to applicant." Following the filing of applicant's Petition for Reconsideration with respect to the issue of penalty, the WCJ wrote in his Report and Recommendation on Petition for Reconsideration: "The main issue here is whether the City of Long Beach acted in such an unreasonable way so as to warrant a penalty. Although petitioner contends that defendant did not comply with the Decision and Order of the Rehabilitation Bureau, the fact is that at no time had the City of Long Beach underpaid the employee. Indeed, quite the contrary, it overpaid employee by $1,194.00 as of July 16, 1982. Thus, even though no further payments were made until September 4, 1982. Even on that date, defendant had fully complied with the Decision and Order of the Rehabilitation Bureau. In conclusion, it cannot be said that defendant did not comply with the Decision and Order of the Bureau. "Unfortunately, [**5] there appears to be a dearth of authority as to the manner in which a defendant employer may claim an overpayment. There is no question but that an employee is subjected to a hardship where payments are suddenly terminated in response to an [*641] overpayment. Perhaps under such circumstances a defendant should be compelled to take any credit for an overpayment against a subsequent award of permanent disability, if any. Arguably, this should be the law, but until codified, it appears that the taking of credit as taken by the defendant herein is not improper. Personally, I feel that this matter should be remedied by amending the Labor Code or the Workers' Compensation Appeals Board Rules and Regulations. In that matter, then a defendant employer will be put on notice as to the proper manner in claiming an overpayment of temporary disability. But until proper notice is given to employers, then there will always be a genuine doubt as to how and when an overpayment may be claimed. Consequently, pursuant to the dictates in Kerley v. WCAB (1971) 4 Cal. 3d 223, 36 Cal. Comp. Cases 152 [93 Cal. Rptr. 192, 481 P.2d 200], [**6] no penalty can be imposed for the unreasonable delay in providing benefits." Defendant was entitled to credit for overpayment of temporary disability indemnity, and it reasonably believed that it had made more than sufficient payments to applicant. Therefore, the taking of credit by defendant was not unreasonable under the facts here presented. When a qualified injured worker is enrolled in a rehabilitation program, "he or she shall continue to receive Page 2 50 Cal. Comp. Cas 639, *; 1985 Cal. Wrk. Comp. LEXIS 4023, **2 temporary disability indemnity." (§ 139.5(c).) Payments are to "be made not less frequently than twice in each calendar month unless otherwise ordered by the Appeals Board." (§ 4651.) When payment of benefits has been unreasonably delayed or refused, "the full amount of the order, decision or award shall be increased by ten per cent." (§ 5814.) The only satisfactory excuse for a delay or refusal in the payment of benefits "is genuine doubt from a medical or legal standpoint as to liability for benefits," and "the burden is on the employer or its carrier to present substantial evidence on which a finding of such doubt may be based." ( Kerley v. WCAB, supra, 4 Cal. 3d at 230.) [**7] In the present matter, the record indicated that defendant had reason to believe that it had paid VRTD indemnity at an excessive rate for a period of time and was, therefore, entitled to credit for this overpayment. The crucial question is whether, assuming that there was an overpayment, defendant acted reasonably in unilaterally suspending payments for a period of time in order to take credit. Our extensive research of the workers' compensation law, including our Rules of Practice and Procedure, the Administrative Director's Rules and Regulations, and the Rehabilitation Bureau's Policy and Procedural Manual, fails to reveal any formal process which an employer must follow in order to obtain credit for overpayment. More specifically, there is neither statutory nor case law presently existing which explains the procedure to be followed by an employer when it believes that there has been [*642] an overpayment of VRTD indemnity. When it took credit for the overpayment, defendant genuinely believed that it had paid more than its obligations under the workers' compensation law. And in view of the fact that there is lacking any formal regulations regarding what procedure to follow, [**8] the unilateral taking of credit by defendant in this situation is not violative of § 5814. ( County of Los Angeles v. WCAB (King), (1980) 104 Cal. App. 3d 933, 941, 45 Cal. Comp. Cases 248[168 Cal. Rptr. 789].) Although we find no unreasonable delay or refusal to pay benefits on defendant's part, by way of this opinion we alert the compensation community that unilateral taking of credit under circumstances such as these in the future will be considered unreasonable. VRTD indemnity payments are important for the maintenance of a qualified injured worker during his or her participation in a rehabilitation plan. Unilaterally and intentionally suspending benefits for the purpose of taking credit for an overpayment can be a substantial impediment to the injured worker's ability to continue participating in the plan. The employer must, therefore, assure that the taking of credit does not jeopardize the workers' ability to continue participation. Employers or carriers in such a predicament should alert the Rehabilitation Bureau and the injured worker of the situation. The unilateral taking of credit for overpaid VRTD indemnity will [**9] no longer be acceptable. If an overpayment has been made, the employer or its carrier should communicate this fact to the injured worker and the Rehabilitation Bureau. All parties can then determine how credit can be taken without impeding the rehabilitation plan. And although no rules currently exist with respect to this situation, the Board suggests that appropriate rules or procedures be adopted by the Administrative Director or the Rehabilitation Bureau. (Examples of suggested procedures are set forth in Rocha v. Zenith Insurance Company (1982) 47 Cal. Comp. Cases 377 (Board en banc decision).) For the foregoing reasons, IT IS ORDERED that the April 15, 1983, Findings and Award and Findings and Order filed in these cases are AFFIRMED. WORKERS' COMPENSATION APPEALS BOARD Charles L. SwezeyI concur CONCURBY: Gordon R. GainesJack R. FentonMarilyn Murata-DemetreParticipating [*643We] concur (See Concurring Opinion)C. Gordon Taylor, ChairmanMarilyn LazarCONCURRING OPINIONWhile we concur with the majority opinion as to the disposition of the penalty issue in this case, we respectfully demur to its suggestion that these Page 3 50 Cal. Comp. Cas 639, *641; 1985 Cal. Wrk. Comp. LEXIS 4023, **6 same factual circumstances will justify [**10] a penalty assessment in the future.At the time of temporary cessation of VRTD for the purpose of taking credit for rate discrepancy overpayment, the defendant City of Long Beach was subject to a Rehabilitation Bureau order obliging it to provide this benefit "at the legal temporary disability rate." Upon file audit discovery of this benefit overpayment made during a period ending July 16, 1982, on July 19 of that year defendant notified both applicant and his attorneys of the error. The written notification specified both the amounts due and the actual payments made during the period in question. It stated the amount of credit that would be taken due to the overpayment and also indicated when payments would resume. In subsequent litigation of this and other issues the WCJ determined that in fact the overpayment had occurred as asserted by the employer.As noted by the majority, our current statutory workers' compensation system prescribes no formal process which an employer must follow in order to obtain credit for benefit overpayment. We do not believe that it was intended that this Board now, or at any time, establish such a process by judicial decree. While we fully subscribe to [**11] the majority's suggestion that an employer should recognize and attempt to ameliorate the possible adverse consequences of complete benefit cessation to rectify overpayment and should seek conciliatory guidance from the Bureau if the parties are unable to agree upon a revised payment schedule, we do not believe that these procedures are currently required as a matter of law.To the contrary it appears to us that current statutory and decisional law requires one obliged to provide workers' compensation benefits in this state to promptly perfect his or her overpayment credit rights or hazard a very real possibility of losing them. While Labor Code § 4909[Deering's] clearly evinces a legislative intent that credit should be allowed in determining liability in circumstances such as this case presents, it is also apparent that such allowance is a matter of Appeals Board discretion. ( Herreras v. WCAB (1969) 71 Cal. 2d 254, 34 Cal. Comp. Cases 382.) Thus the Board has denied credit for temporary disability overpayment due to rate discrepancy against liability [*644] n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City [**12] of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ In the instant proceeding, it is apparent that the indemnity paid in excess of the statutorily required rate constituted a pre-payment of employer's future obligation to provide this form of benefit. Indeed, it is not unlike the pre-payment credit allowed an employer for the employees' third party recovery (see Oldaker v. McGrath Steel Company (1981) 46 Cal. Comp. Cases 186, WCAB en banc opinion). If the prompt redemption of indemnity overpayment by means of taking credit against [**13] future payments as done in this case is to be modified or otherwise curtained, surely it is for the legislature to accomplish by appropriate statutory change rather than by this judicial body through case decision.WORKERS' COMPENSATION APPEALS BOARDC. Gordon Taylor, ChairmanMarilyn Lazar DIGESTS OF CASES DENIED JUDICIAL REVIEW Page 4 50 Cal. Comp. Cas 639, *643We; 1985 Cal. Wrk. Comp. LEXIS 4023, **9 Hayoshi - deals with no retro credit for TD until med report is received Chester Haynoski, Petitioner v. Workers' Compensation Appeals Board of the State of California; Polycarbon, Inc.; and Zurich American Insurance Company, Respondents Civil No. B044957- 55 CCC 9555 CCC 9555 Cal Comp Cases 9555 Cal. Comp. Cases 95 Court of Appeal, Second Appellate District,Division 5 April 4, 1990April 4, 19901990 Editorial Information: Prior History W.C.A.B. No. 85 VN 151352-WCAB Judge Harvey Stark Disposition: Petition for writ of review denied Counsel: For petitioner-Law Offices of S. & S.H. Cohen, by Sheldon Cohen For respondent employer-Zonni, Ginocchio & Taylor, by Thomas J. Hedrick Editorial Information: Headnotes Temporary Disability-WCJ's finding that employee was overpaid temporary disability benefits was not based on substantial evidence. [See generally, Hanna. Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, ? 13.02.] Chester Haynoski filed for Workers' Compensation benefits alleging industrial injury to his back, chest, and legs from a lifting injury on May 21, 1984. Haynoski was provided temporary disability benefits and continued medical care. Eventually he was examined by an agreed medical examiner who opined that Haynoski's condition {96}had become permanent and stationary around November 21, 1984, six months following the injury. Haynoski had been paid temporary disability benefits, pursuant to his treating physician's reports, through September 11, 1985. At hearing, the defendant requested a credit for overpayment of temporary disability for the period from November 21, 1984 through September 11, 1985 based on the agreed medical examiner's report. The workers' compensation judge allowed the credit based on the agreed medical examiner's recommendations. Haynoski petitioned for reconsideration, contending that the judge erred in finding him permanent and stationary as of November 21, 1984 and in allowing defendant a credit for overpayment of temporary disability. The Appeals Board granted reconsideration, and found that Haynoski's condition was not permanent and stationary until January 18, 1985, when he was released to work by his treating physician. The Board rejected the agreed medical examiner's opinion as to a shorter temporary disability period as not based on substantial evidence given the fact that the agreed medical examiner only examined Haynoski on April 28, 1987. The Board ordered credit for overpayment of temporary disability from January 18, 1985 through September 11, 1985 only. In his Petition for Writ of Review, Haynoski asserted that the Board erred in finding any overpayment of temporary disability, and that substantial evidence did not support such a finding. WRIT DENIED April 4, 1990. Paul Rohrback, Petitioner v. Workers Compensation Appeals Board of the State of California; M & J Logging; and Employee Benefits Insurance Company, Respondents. 53265 Court of Appeal, First Appellate District, Division 1 48 Cal. Comp. Cas 78; 1983 Cal. Wrk. Comp. LEXIS 3584 January 25, 1983 PRIOR HISTORY: [**1]  W.C.A.B. No. EUR 10120 DISPOSITION: Proceeding to review a decision of the Workers' Compensation Appeals Board holding that a workers' compensation insurer had not unreasonably withheld benefits when it unilaterally asserted a credit without first adjusting the amount of the credit or obtained a definitive ruling from a judge as to the amount of the credit. Decision annulled. HEADNOTE: Penalties--A workers' compensation insurer unreasonably delayed payment of workers' compensation benefits where it unilaterally took a credit against liability for permanent disability without first attempting to adjust the amount or the credit as required in a Findings and Award. [See generally Hanna. Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, § 17.06[2].] COUNSEL: For petitioner--Abraham Virdeh For respondent insurer--Sedgwick, Didert, Moran and Arnold, by John Bennett OPINIONBY: Holmdahl, J. OPINION: This case presents a narrow issue of construction under Kerley v. W.C.A.B. (1971) 4 Cal. 3d 223 [36 Cal. Comp. Cases 152, 93 Cal. Rptr. 192, 481 P.2d 200], which set the standard for determining when employers are liable for a 10% increase in a worker's compensation award because [**2]  of unreasonable delay in making payments, under Labor Code section 5814 [Deering's]. n1 ---------------------------Footnotes----------------------- Section 5814 reads as follows: "When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 percent. The question of delay and the reasonableness of the cause therefor shall be determined by the appeals board in accordance with the facts. Such delay or refusal shall constitute good cause under Section 5803 to rescind, alter or amend the order, decision or award for the purpose of making the increase provided for herein." We are asked to decide how broad a meaning the Supreme Court intended for the term "liability" in holding "that the only satisfactory excuse for delay in payment of disability benefits ... is genuine doubt from a medical or legal standpoint as to liability for benefits..." ( Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 230.) n2 ---------------------------Footnotes----------------------- [**3] We reject petitioner's second argument, that the board erred in incorporating by reference the findings of the worker's compensation judge as the board's own. (See, e.g., Gaiera v. W.C.A.B. (1969) 271 Cal. App. 2d 246, 248 [34 Cal. Comp. Cases 182, 76 Cal. Rptr. 656].) ----------------------------------EndFootnotes------------------------------ [*80] Employer M&J Logging and its insurance carrier Employee Benefits Insurance Company (collectively "EBIC") contend that Kerley insulates them from the statutory penalty because of their doubt of liability to make further payment of compensation until they had fully offset overpayments and before the final order was issued. The Worker's Compensation Appeals Board (board) accepted this rationale. We hold, for a number of reasons, that EBIC's position is incorrect. I There is and has been no dispute between the parties on the underlying question of liability. n3 ---------------------------Footnotes----------------------- Section 3600, which defines liability, follows: ----------------------------------EndFootnotes------------------------------ Petitioner, then 50 years old,  [**4]  was employed by M&J Logging in its logging operations when, on July 14, 1977, a log weighing several tons rolled over him. He suffered internal injuries as well as injuries to his ribs, clavicle, and an arm. He had not returned to work again as of the last evidentiary hearing below. Most of the proceedings below were devoted to fixing the extent of petitioner's permanent disability. The case was submitted to the board's  [*81] rating bureau four times, resulting in consecutive recommended permanent disability ratings of 80%, 82 1/4%, 86 1/4%, and--the figure ultimately utilized by the board in its award--96 1/4%. At no time did EBIC dispute any of the ratings since the earliest pleading stages of the case, EBIC has admitted basic liability. Thus, it is given that petitioner suffered an "injury ... arising out of and in the course of the employment...," which was not rendered non-compensable under any of the subdivisions of section 3600. II At a hearing on September 27, 1978, pursuant to the parties' stipulation, a board rehabilitation consultant ordered EBIC to pay temporary disability benefits of $154.00 per week during petitioner's rehabilitation program for "up to 90 days."  [**5]  The consultant added not only that "it would appear appropriate to suspend further rehabilitation activities at that time [90 days hence]," but also that "Mr. Rohrback is, of course, entitled to receive temporary disability benefits during his involvement in the rehabilitation process until it has been concluded." During the 90-day period (ending December 26, 1978), and moreover for approximately eight months thereafter, EBIC paid petitioner at the $154.00 per week rate. Then, in August, 1979, EBIC formally requested termination of rehabilitation benefits, retroactive to December 26, 1978. The rehabilitation consultant, finding that further rehabilitation efforts "would not be productive or appropriate at this time," suspended temporary benefits on August 17, 1979, without any reference to retroactivity. EBIC never directly contested this ruling, though the $154.00 weekly amount was $84.00 greater than the amount for which EBIC would otherwise have been obligated in the form of retroactive benefits for permanent disability in the ultimate award. n4 ---------------------------Footnotes----------------------- See section 4650, which reads: ----------------------------------EndFootnotes------------------------------ [**6] Instead, EBIC argued in the hearings on permanent disability compensation that in the final award it should recover a credit of $84.00 per week for all the weeks between December 26, 1978, and August 17, 1979. n5 ---------------------------Footnotes----------------------- Eventually, the board found that EBIC was not entitled to any such credit, mainly because EBIC had failed to contest the issue in the proper manner i.e., by challenging the rehabilitation consultant's order of August 17. Instead, EBIC had introduced the issue in a different setting without making it clear that the issue had already been resolved adversely to EBIC by the consultant. ----------------------------------EndFootnotes------------------------------ [*82] On June 16, 1980, the workers' compensation judge (judge) issued his findings and award. The relevant finding was that "[d]efendants are entitled to credit for overpayment of temporary disability indemnity in an amount to be adjusted by the parties..." (Emphasis added.) The relevant portion of the award read: "... [p]ermanent disability indemnity of [$33,547.50] payable at $70.00 per week beginning 12/5/78 and not less than twice each calendar  [**7]  month thereafter until paid in full, ... less credit for overpayment of temporary disability indemnity in an amount to be adjusted by the parties for the period from 12/2/78 [sic] through 8/17/79..." (Emphasis added.) Petitioner requested reconsideration by the board, and in due course, on July 21, 1980, the judge made his report to the board, and served it on the parties. Inter alia, the report said: "[T]he fact that such credit was to be in an amount to be adjusted by the parties clearly infers [sic] that if the parties cannot agree the matter must be back before the Board to make a decision on the proper amount." (Emphasis added.) In the interim, however, EBIC took unilateral action. The insurance carrier sent petitioner a letter, dated July 9, 1980, reciting (1) that it calculated a credit of $2,242.90, (2) that this amount would be credited at the rate of $70.00 per week until satisfied, and, therefore, (3) petitioner would receive his first actual payment in February, 1981. Petitioner's counsel immediately sent to EBIC's counsel a letter protesting the unilateral action and threatening to move for penalties under section 5814 if payments were not initiated within ten days.  [**8]  EBIC's counsel replied with a terse letter making reference to the carrier's July 9 letter, clearly implying that EBIC absolutely maintained the position stated in that letter. n6 ---------------------------Footnotes----------------------- In February, 1981, instead of reinstituting payments as promised, EBIC sent to petitioner another letter. Without apology or even acknowledgement of error, the letter recited that the credit had now grown to $3,012.00, and therefore the first payment would be forwarded on May 4, 1981. ----------------------------------EndFootnotes------------------------------ Petitioner thereupon moved for imposition of the section 5814 penalty. The judge initially granted the motion. However, EBIC petitioned for reconsideration, arguing in essence that the Kerley doctrine contemplates within its protection from penalties a doubt as to whether present payments are due, when despite the employer's conceded liability for compensation,  [*83] the employer also believes it is entitled to a credit. Since EBIC doubted whether present payments were due, it argued, it doubted whether it was "liable" for payments. In his following report to the board, the judge [**9]  accepted EBIC's reasoning, and reversed his former position. The board likewise accepted EBIC's argument, and ordered the penalty stricken. It is for relief from this order that petitioner has come to this court. III We examine Kerley and conclude that it does not support EBIC's position. "[T]he only satisfactory excuse for delay in payment of disability benefits, whether prior to or subsequent to an award, is genuine doubt from a medical or legal standpoint as to liability for benefits, and ... the burden is on the employer or his carrier to present substantial evidence on which a finding of such doubt may be based." ( Kerley v. W.C.A.B., supra, 4 Cal. 3d, 223, 230.) The cardinal rule as quoted leaves little room to doubt that "liability" is intended in the statutory, or common, sense the remainder of Kerley removes all doubt. The court noted that its review of case law revealed that only where "there was substantial doubt as to whether any liability existed" ( id., at p. 230, fn. 9 emphasis in original) has a penalty award been annulled. [**10]  It noted that a dispute as to extent of liability "is obviously no reason to withhold any advances" ( id., at p. 227, fn. 5), because the employer can get a hearing on the disputed issue "without prejudicial delay in virtually every case except those in which the employer has good cause to believe that there is clearly no permanent disability." ( Id., at p. 227, fn. 5 emphasis added.) Also, the Kerley court equated undisputed evidence of an industrial injury which caused a condition not subject to improvement, with "no evidence whatever to sustain" a finding of genuine doubt from a medical or legal standpoint as to liability. ( Id., at pp. 229 --230.) The doubt professed by EBIC in this case does not reasonably fit within the narrow exception intended by the Kerley court. To whatever extent EBIC's position actually is that there was no delay in payments, we reject it. EBIC's unilateral action was a direct statutory violation. Sections 4650 (see fn. 4, ante, page 5) and  [**11]  4651 provide, respectively, that "a [permanent] disability payment shall be made" on the fourth day after the injury is permanent or temporary benefits have stopped, and that the payments "shall thereafter be made not less frequently than twice in each calendar month, unless otherwise ordered by the appeals  [*84] board." Given liability in the general sense, sections 4650 and 4651 impose a mandatory duty on the employer. EBIC suggests that the proper step was for petitioner to move, under section 5100, for a lump sum payment and an order as to time of its payment. But under section 5100, either party may so move obviously, in this instance the only relevance of section 5100 is that it provided one of many mechanisms available to EBIC as a means to resolve the dilemma it perceived between its manifest statutory duty to pay petitioner and the asserted privilege of recovering the credit "up front." In seeking to protect what it viewed as an overpayment, EBIC could have sought either: 1) a definitive ruling by the judge as part of his June 16, 1980, findings and award 2) an adjustment of the amount with petitioner promptly upon the making of the award containing the "to be adjusted adjusted [**12]  by the parties" provision or 3) a further hearing for determination of that issue by the judge. Instead, EBIC chose to act unilaterally and to withhold all payments. We conclude that in terms of section 5814, it was "unreasonabl[e]" for EBIC to construe the judge's order, and his subsequent report discussing that order, as permitting a unilateral termination of payments. The order plainly implied that the parties should attempt to resolve the issue of the credit, since years of payments could be made before the credit would be in any jeopardy and that, if they failed to resolve the issue, the parties should return to the judge or the board for directions. There is no other reasonable interpretation of the order. Thus, another answer to EBIC's contention that it had a "genuine doubt" as to whether the credit could be recovered as an offset against the first payments in toto, is that the order itself, to the contrary, left no room for reasonable doubt on this subject. We hold that there was no evidence whatsoever to support the board's finding that EBIC, when it withheld payments from petitioner, had a genuine doubt from a legal standpoint as to its liability for benefits. (§ 5952,  [**13]  subd. (d) Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 230.) EBIC's unilateral withholding of payments plainly violated both the Labor Code and the order to which EBIC was subject. The award dated June 3, 1981, is annulled and the case is remanded with directions to enter a new award, in the same principal amount, with an additional penalty of 10% of the total amount of permanent disability benefits awarded. (Cf. Gallamore v. W.C.A.B. (1979) 23 Cal. 3d 815, 824-826 [44 Cal. Comp. Cases 321, 153 Cal. Rptr. 590, 591 P.2d 1242].) The award shall, to the extent necessary, specify that any of such sum as may  [*85] previously have accrued and remains due and unpaid to petitioner under the terms of the June 3, 1981, order shall be paid in full within ten days. We do not decide the amount nor the timing and manner of recognition of any overpayment to which EBIC may have been entitled, inasmuch as that issue is not before this court. (See Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 227, fn.5.) [**14]  We concur CONCURBY: Racanelli, P.J.Newsom, J.  [*86] Further statutory references in this opinion will be to provisions of the Labor Code, except as otherwise indicated.' s work-related duties, except where such activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision. Failure of the employer to post such a notice shall not constitute an expression of intent to waive the provisions of this subdivision." In this opinion, unless otherwise indicated we shall refer to "liable" and "liability" in the common or general sense intended by section 3600. The board's ultimate finding on the credit issue is not before this court, and we do not review it. We are not concerned here with EBIC's entitlement to the credit, but rather with the justification for EBIC's belief, and the propriety of its conduct based upon that belief, that the credit was due immediately when the award of permanent disability indemnity was made. APPEALS BOARD DECISIONS Hollie Rutkowski, RN, JD, MBA, Esq. The Compensation Law Center Sacramento, CA   95834 T:916.974.0424 F:916.974.0428 From: "Matthew Verduzco, lawnet listserver" <listsender-lawnet@lawnet.caaa.org> To: "Statewide List Service" <lawnet@lawnet.caaa.org> Sent: Friday, January 23, 2026 10:55:17 AM Subject: Re: [lawnet] NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) List: lawnet Sent By: Bonnie Binder-Wilson Reply To Sender Reply To List Search Settings Did anyone post the 2 cases Steve Schulman requested?  I would like to see them also. Bonnie Binder Wilson, Esq. Wilson & Wisler, LLP Attorneys at Law 21 Maple Street Salinas, California  93901 Telephone: (831) 269-3787 Facsimile: (831) 269-3783 www.doubleulaw.com *************** PRIVATE AND CONFIDENTIAL **************** THIS ELECTRONIC MESSAGE TRANSMISSION IS A COMMUNICATION FROM THE LAW FIRM OF WILSON & WISLER, LLP.  THIS MESSAGE CONTAINS INFORMATION PROTECTED BY THE ATTORNEY/CLIENT PRIVILEGE AND IS CONFIDENTIAL OR OTHERWISE THE EXCLUSIVE PROPERTY OF THE INTENDED RECIPIENT OR WILSON & WISLER, LLP.  THIS INFORMATION IS SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY THAT IS THE INTENDED RECIPIENT. From: Steve Schulman (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> Sent: Tuesday, January 20, 2026 2:38 PM To: Statewide List Service <lawnet@lawnet.caaa.org> Subject: [lawnet] NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) List: lawnet Sent By: Steve Schulman Reply To Sender Reply To List Search Settings Can someone kindly send these cases. Thank you. Steven B. Schulman Law  Office of Steven B. Schulman 13025 Danielson Street, Suite 260 Poway, CA 92064 (858) 863-8000, Fax (858) 863-6901

"M. Hollie Rutkowski" Date: January 23, 2026 1:25:00 PM Subject: Re: NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) Reply to list Reply to sender Print List: lawnet Sent By: Hollie Rutkowski Reply To Sender Reply To List Search Settings J.C. Penney Company v. Workers' Compensation Appeals Board (2009) 74 Cal. Comp. Cases 826, 830, 2009 Cal. Wrk. Comp. LEXIS 201, *9-11, 175 Cal. App. 4th 818, 96 Cal. Rptr. 3d 469. July 07, 2009 at 12:00 AM C.A. 3rd C059760 The Third Appellate District annulled and remanded a decision of the Workers’ Compensation Appeals Board. The court held that an employer’s failure to make a timely challenge to an adverse medical opinion barred it from later seeking a credit for overpayments. James Edwards was injured on July 23, 2003, while working for J.C. Penny Company. Edwards began receiving temporary disability indemnity payments immediately. These payments continued through March 14, 2007. On February 5, 2007, Edwards’s physician opined that Edwards’s condition was permanent and stationary and had probably been so since about August 2005. J.C. Penney thereafter sought a credit for the temporary disability indemnity payments received by Edwards from August 2005 through March 14, 2007. Following hearing, a workers’ compensation administrative law judge granted J.C. Penney’s request for a credit only as to the period from February 5 through March 14, 2007. The adminstrative law judge (ALJ) found that Edwards’s temporary disability ceased on February 5, when his physician’s opinion issued, and not prior. J.C. Penney was accordingly not entitled to a credit for the period preceding that date. The Workers’ Compensation Appeals Board (WCAB) affirmed the ALJ’s order. The court of appeal annulled and remanded the WCAB’s decision, holding that Labor Code §4062 barred the overpayment credit sought by J.C. Penney. Section 4062 provides, in pertinent part, “If [the] employer objects to a medical determination made by the treating physician concerning any medical issues … , the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney ….” The court found that a treating physician’s determination that an injured worker continues to be temporarily totally disabled is a medical determination subject to §4062’s objection requirement. As the court saw it, the evident purpose of the time limits in §4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms. This purpose cannot be attained if a party such as J.C. Penney can fail to object in a timely manner and nonetheless thereafter tender a claim that contradicts a medical determination subject to the objection requirement of the statute. Accordingly, when J.C. Penney failed to object to a medical determination of temporary total disability by Edwards’s treating physician within the time limit provided in §4062, it lost the right to object to that determination in the future. Although §4062 permits an extension of the time limits for good cause, J.C. Penney made no such showing. However, the court found, the record did not support a denial of credit for the entire time period. The most recent medical evaluation prior to February 2007 stated that Edwards was “[t]emporarily totally disabled through June 2006.” Accordingly, the reach of the statute extended only that far. Insofar as the denial of J.C. Penney’s requested credit was predicated on §4062, it could not be justified beyond that point. The court held further that the record did not support an equitable bar to the overpayment credit. Absent a showing that J.C. Penney was actually aware, or was even in a superior position to have known, that Edwards’s condition had become permanent and stationary prior to February 2007, equitable estoppel did not apply. · * * * * * * Opinion No. C059760. July 7, 2009. Mullen Filippi and Gregory T. Jones for Petitioners. Neil P. Sullivan for Respondent Workers' Compensation Appeals Board. Metzinger and Associates and Ronald M. Metzinger for Respondent James Edwards. OPINION BUTZ, J. Petitioners J.C. Penney Company and its insurer American Home Assurance Company, adjusted by AIG Claim Services (collectively J.C.  Penney), contend that respondent the Workers' Compensation Appeals Board (WCAB) erred in limiting a credit for overpayment of temporary disability indemnity. Entitlement to temporary disability indemnity ends when the condition of the injured worker becomes permanent and stationary. J.C. Penney sought the credit against the permanent disability indemnity award of injured worker respondent James Edwards. J.C. Penney claimed that his condition became permanent and stationary some 19 months before it stopped paying temporary disability indemnity. The WCAB limited the requested credit on the ground that J.C. Penney failed to object, under Labor Code section 4062 , to the ongoing determinations of Edwards's treating physicians that he remained temporarily totally disabled. J.C. Penney argues that the WCAB erred because the treating physicians' determinations were based on an incorrect legal theory and do not afford substantial evidence of ongoing temporary disability. The argument is unpersuasive, but the WCAB's rationale does not support the amount of the limitation of the credit. We shall annul the award and remand for further proceedings to determine the appropriate credit. Undesignated statutory references are to the Labor Code. Section 4062 , as applicable here, provides: "(a) If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues [with exceptions not applicable here], the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the repor. . . . These time limits may be extended for good cause or by mutual agreement. If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2 [selection of agreed medical examiner], and no other medical evaluation shall be obtained. . . ." FACTUAL AND PROCEDURAL BACKGROUND On July 23, 2003, Edwards was on a ladder painting a J.C. Penney store in Sacramento. He fell and was injured. He suffers chronic pain in his left elbow, lower back, and right knee and leg. Edwards's treating physician after December of 2003 was Dr. Connie Kimble. She referred him to Dr. David Coward who performed knee surgery on February 9, 2005. She also referred him to Dr. Praveen Prasad, a neurosurgeon. On October 24, 2005, Dr. Prasad recommended a back fusion surgery. On December 20, 2005, the initial request for authorization of the surgery was denied in a utilization review under section 4610 . Edwards was then referred to Dr. Laura Anderson, a neurosurgeon, for a second opinion on the surgery recommended by Dr. Prasad. On February 14, 2006, Dr. Anderson advised against the recommended fusion surgery. She did opine that an alternative decompression surgery would be appropriate "if the patient at some point decides that the right leg is disabling." On April 28, 2006, Edwards again saw Dr. Kimble, who noted that his use of pain medication had increased. She reported: "Hopefully, this is short-term in that his surgery will be approved, and his pain level will be reduced." Edwards saw Dr. Kimble again on May 24, 2006. She noted for the first time in her report for this visit that he had met with Dr. Anderson who had recommended against the fusion surgery. Dr. Kimble recommended an evaluation for an implanted pump to deliver pain medicine to the spinal cord. Her progress report asserts that Edwards remains: "Temporarily totally disabled through June 2006." There are no subsequent progress reports from treating physicians in the record until April of 2007. At some point prior to February 5, 2007, the parties apparently agreed to a medical examination (see § 4062.2 ) by Dr. Peter Mandell concerning contested medical issues. On that date Dr. Mandell examined Edwards and prepared an evaluation report. In pertinent part, Dr. Mandell opined that Edwards's condition was permanent and stationary and "probably became so six months after a RIGHT knee arthroscopy which he had on 2/9/05." There is no documentary evidence in the record of the request for this medical evaluation. Edwards had been receiving temporary disability indemnity payments from the time of his injury. These payments ended March 14, 2007. Edwards's case came on for hearing before a workers' compensation administrative law judge (ALJ) on January 22, 2008. Edwards testified concerning his medical history and the nature of his current condition. No inquiry was made about the decision on back surgery or the claimed overpayment. The ALJ rendered a decision and award on April 18, 2008. He found that the date Edwards's medical condition became permanent and stationary was the day he was examined by Dr. Mandell, reasoning as follows: "Applicant had been evaluated by Dr. Mandell as an agreed medical examiner February 5, 2007. As noted, Dr. Mandell felt that he was permanent and stationary. . . . "An injured worker is entitled to temporary disability indemnity while he is in his healing period. ( Bstandig v. WCAB (1977) 42 [Cal.Comp.Cases] 114,  118 [ 68 Cal.App.3d 988 , 137 Cal.Rptr. 713 ].) Applicant was clearly in his healing period while he was awaiting authorization for surgery proposed by Dr. Prasad. After that surgery was not authorized, Dr. Kimble indicated on a recurring basis that he continued to be temporarily disabled. . . . "If [J.C. Penney] disputed [Edwards's] temporary disability status at any time, it could have objected to Dr. Kimble's findings under Labor Code [section] 4062. Although I can reasonably infer there was an objection at some point in time and that Dr. Mandell was agreed upon to resolve that issue (and, apparently, other issues) it is contrary to the spirit of [section] 4062 to permit a retrospective determination of a permanent and stationary date when there was substantial evidence to support ongoing temporary disability. "Based on the record presented to me Dr. Mandell's implied opinion that [Edwards] was permanent and stationary the date he saw him supports a determination that temporary disability ceased at that time, but not earlier." In an amended award and order of April 30, 2008, the ALJ found that there had been an overpayment of temporary disability indemnity for the period from "February 6, 2007, through March 14, 2007." J.C. Penney filed a petition for reconsideration on May 16, 2008. J.C. Penney contended that there was no substantial evidence to support the finding that Edwards's medical condition achieved permanent and stationary status on the date he was examined by Dr. Mandell. J.C. Penney argued the only evidence on permanent and stationary status was Dr. Mandell's opinion that the date was August 9, 2005. J.C. Penney made no mention of the remarks of the ALJ about "the spirit of [section] 4062." The WCAB, in pertinent part, affirmed the award and order, adopting and incorporating the reasoning of the ALJ as related above. J.C. Penney filed its petition for writ of review and we issued the writ on October 16, 2008. DISCUSSION I. Section 4062 Bars Part of the Overpayment Credit J.C. Penney Sought Neither J.C. Penney nor Edwards in their initial memoranda in this court addressed the reasoning that retrospective determination of a permanent and stationary date would be inconsistent with "the spirit of section 4062 ." We asked them to address this in supplemental briefs. J.C. Penney contends that the WCAB erred in basing denial of the requested credit on failure to object under section 4062 . J.C. Penney notes that the ALJ's remarks about section 4062 barring a retrospective determination of a permanent and stationary date included the phrase "when there [i]s substantial evidence to support ongoing temporary disability." J.C. Penney argues that the award cannot be upheld under this logic because Dr. Kimble's ongoing findings do not constitute "substantial evidence to support ongoing temporary disability." However, the denial of the credit under section 4062 does not require a finding of substantial evidence of ongoing temporary disability and the WCAB did not err in basing a denial of the requested credit on that statute. The statutory duty to pay temporary disability compensation continues during the period in which an injured worker, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury. ( Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159, 168 [ 193 Cal.Rptr. 157 , 666 P.2d 14 ].) The duty ends when the worker is able to return to work or when his or her medical condition becomes permanent and stationary. (E.g., Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292 [ 135 Cal.Rptr.2d 665 , 70 P.3d 1076 ].) "A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment." ( Cal. Code Regs., tit. 8, § 10152 ; see id. , § 9785, subd. (a)(8).) This is so even though further medical treatment may be required to relieve the effects of the injury. (See, e.g., 2 Witkin, Summary of Cal. Law (10th ed. 2005 ) Workers' Compensation, § 287, pp. 895-897.) Thus, "temporarily disabled" and "permanent and stationary" are contradictory propositions. Edwards's condition became permanent and stationary when it was unlikely to change substantially in the next year with or without medical treatment, even though he continued to require medical treatments to alleviate pain caused by his industrial accident. Accordingly, a medical opinion that he continued to be temporarily totally disabled would be legally untenable unless there was evidence showing some likelihood of substantial change in his condition within the year, e.g., through medical treatment such as back  surgery. The medical determination by Dr. Kimble that Edwards was temporarily totally disabled, i.e., his condition was not yet permanent and stationary, is not substantial evidence of ongoing temporary disability without a foundation of some likelihood of substantial change in the ensuing year. J.C. Penney and Dr. Mandell's report assume that permanent and stationary status was reached when Edwards had recovered from his knee surgery, because, as it turns out, authorization for back surgery was denied. However, this retrospective view fails to note that, while the possible back surgery was in dispute, Edwards was undergoing medical diagnostic procedures. Thus his condition could be determined not yet to be permanent and stationary, until further back surgery was ruled out. (See, e.g., Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd., supra , 34 Cal.3d at p. 168 ; 1 St. Clair et al., Cal. Workers' Compensation Law and Practice (Dec. 2008 supp.) Temporary Disability, § 7:41, pp. 7-17 to 7-18.) However, the WCAB's denial of the credit under section 4062 does not rest on a finding that Dr. Kimble's opinion of ongoing temporary total disability is substantial evidence that Edwards's condition was not yet permanent and stationary. If that were the import of the WCAB's reasoning, no purpose would be served by the reference to section 4062 . The ALJ would have found ongoing temporary disability directly, based on Dr. Kimble's opinion. It is only because Dr. Mandell's reasoning rebutted the apparent view of Dr. Kimble, that treatment to manage pain alone sufficed to warrant temporary disability, that there was any occasion to invoke "the spirit of section 4062 ." The WCAB's decision to deny a full credit for overpayment necessarily rests on the theory that the policy of section 4062 bars recovery of an overpayment, rather than a theory that there was no overpayment. The phrase "when there is substantial evidence to support ongoing temporary disability" is superfluous, but "[s]uperfluity does not vitiate" (Civ. Code, § 3537 ). The rationale of the award turns on public policy manifest in section 4062 . The statute provides, in pertinent part, "If [the] employer objects to a medical determination made by the treating physician concerning any medical issue . . ., the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney. . . . These time limits may be extended for good cause or by mutual agreement." ( § 4062, subd. (a) .) A determination by a treating physician that an injured worker continues to be temporarily totally disabled is a medical determination subject to the objection requirement of Labor Code section 4062 . (See Cal. Code  Regs., tit. 8, § 9785 .) The question is: What is the effect of failing to object within the "time limits" of that statute? California Code of Regulations, title 8, section 9785 addresses the reporting duties of the primary treating physician and contains the following pertinent definitions: "(a) For the purposes of this section, the following definitions apply: "(1) The `primary treating physician' is the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter. . . . [¶] . . . [¶] "(4) `Medical determination' means, for the purpose of this section, a decision made by the primary treating physician regarding any and all medical issues necessary to determine the employee's eligibility for compensation. Such issues include but are not limited to the scope and extent of an employee's continuing medical treatment, the decision whether to release the employee from care, the point in time at which the employee has reached permanent and stationary status, and the necessity for future medical treatment. [¶] . . . [¶] "(g) When the primary treating physician determines that the employee's condition is permanent and stationary, the physician shall, unless good cause is shown, report within 20 days from the date of examination any findings concerning the existence and extent of permanent impairment and limitations and any need for continuing and/or future medical care resulting from the injury. . . ." The requirement for an objection under section 4062 is stated in mandatory language: "the objecting party shall notify the other party in writing. . . ." The ordinary meaning of a mandatory time limit is that once the prescribed time has passed the action subject to the time limit may no longer be taken. When J.C. Penney failed to object to a medical determination of temporary total disability by Edwards's treating physician within the time limit provided in section 4062 , it lost the right to object to that determination in the future. The evident purpose of the time limits in section 4062 is to induce both employer and employee to declare promptly medical determination disputes and expeditiously resolve them through the prescribed mechanisms. This purpose cannot be attained if a party such as J.C. Penney can fail to object in a timely manner and nonetheless thereafter tender a claim that contradicts a medical determination subject to the objection requirement of the statute. If either employer or employee fails to raise a dispute about a medical determination within the ambit of section 4062 within the prescribed time, they may not attack that determination thereafter. Section 4062 permits extension of the time periods "for good cause." ( § 4062, subd. (a) .) However, J.C. Penney offered no claim of good cause for failure to object in the WCAB proceedings. We will not speculate about the nature of good cause in the abstract. It suffices to say that ignorance of a legal theory of rebuttal of a medical determination is not good cause for failure to object. If that were allowed, the exception would swallow the rule. We find the core reasoning of the WCAB correct. "[I]t is contrary to the spirit of [section] 4062 to permit a retrospective determination of a permanent and stationary date" when to do so would be to allow a belated objection to a medical determination by the treating physician. However, that does not justify extending the permanent and stationary date until the time that the agreed medical examiner rendered an opinion that the worker's condition was permanent and stationary. The limitation under section 4062 is to contradiction of the unchallenged medical determination of the treating physician. The last such determination before the agreed medical examiner process was invoked is Dr. Kimble's report that Edwards was "[t]emporarily totally disabled through June 2006." Accordingly, the reach of the statute extends only that far. Insofar as the denial of J.C. Penney's requested credit is predicated on section 4062 , it cannot be justified beyond that point on this record. II. The Record Does Not Support an Equitable Bar to the Overpayment Credit Edwards contends that an award denying any credit prior to Dr. Mandell's finding on February 5, 2007, should be upheld on an estoppel rationale discussed in Maples v. Workers' Comp. Appeals Bd. (1980) 111 Cal.App.3d 827 [ 168 Cal.Rptr. 884 ] ( Maples). J.C. Penney replies that the factual record in this case does not support an estoppel. J.C. Penney has the more persuasive position. In Maples the court held that the WCAB erred in permitting the insurance carrier for the employer to claim an overpayment of temporary disability indemnity payments against petitioner's permanent disability award. ( Maples, supra , 111 Cal.App.3d at pp. 829-830 .) The carrier had received a medical evaluation opinion in November of 1977 that found the employee to be permanent and stationary. ( Id. at p. 830.) However, the first notice the carrier gave the employee of the opinion was in a supplemental medical report from the same doctor, filed and served in September 1978, reaffirming the permanent and stationary status opinion as of the date of the prior examination and report. ( Ibid. ) The carrier stopped paying temporary disability indemnity as of August 9, 1978, but did not immediately advise the employee of the reason for the termination. ( Maples , at pp. 830-831.) The Maples opinion held the carrier estopped, as a matter of law, from claiming that temporary disability ended prior to the employee's receipt of the report containing the opinion his condition was permanent and stationary. ( Maples, supra , 111 Cal.App.3d at p. 839 .) The opinion notes that the carrier  had violated provisions of the Labor Code and WCAB rules in failing to timely file with the appeals board and serve on the employee the original medical report and in failing to file a petition to terminate temporary disability indemnity within 10 days of the cessation of payments. ( Id. at pp. 834-835.) The full disclosure of medical reports as required by WCAB rules is essential to the expeditious determination of the controversies submitted to the appeals board and failure to disclose is prejudicial to the injured worker. This prejudice is, inter alia, that the allowance of credit for a temporary disability overpayment can be disruptive of the purpose of permanent disability indemnity, delay receipt by the injured worker of additional workers' compensation benefits and his return to employment, and prevent the worker's doctor from recommending further medical or surgical procedures. ( Id. at pp. 836-837.) J.C. Penney correctly argues that the Maples estoppel theory is inapplicable. Estoppel requires, inter alia, a false representation or concealment of material facts made with knowledge of the facts. (See, e.g., 13 Witkin, Summary of Cal. Law (10th ed. 2005 ) Equity, § 191, pp. 527-528.) In Maples the employer was aware of and improperly suppressed a medical evaluation opinion that the employee was permanent and stationary. However, there is no evidence in this case that J.C. Penney was actually aware, or was even in a superior position to have known, that Edwards's condition had become permanent and stationary before Dr. Mandell's report. Estoppel is not the only equitable principle the WCAB may use in the exercise of discretion to deny a credit. (See Maples, supra , 111 Cal.App.3d at pp. 837-838 .) The WCAB generally has some degree of discretion to grant or deny credit for overpayments under section 4909 . (See, e.g., Genlyte Group, LLC v. Workers' Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 724 [ 69 Cal.Rptr.3d 903 ]; Herrera v. Workmen's Comp. App. Bd. (1969) 71 Cal.2d 254, 258 .) However, we cannot sustain the denial of a credit beyond the limit based on section 4062 on equitable grounds. The only ground asserted in the WCAB award is section 4062 . The WCAB did not otherwise assess the relative equities in either recognizing or denying full or partial credit. Section 4909 provides: "Any payment, allowance, or benefit received by the injured employee during the period of his incapacity, or by his dependents in the event of his death, which by the terms of this division was not then due and payable or when there is any dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid. The acceptance of any such payment, allowance, or benefit shall not operate as a waiver of any right or claim which the employee or his dependents has against the employer." DISPOSITION The decision and award of the WCAB is annulled and the matter remanded for further proceedings to determine the amount of the credit to J.C. Penney for overpayment of temporary disability indemnity in accord with the views expressed in this opinion. The parties are to bear their own costs before this court. ( Cal. Rules of Court, rule 8.493(a)(1)(B) .) Nicholson, Acting P. J., and Hull, J., concurred. TDOP N0 credit against PD Santa Barbara County Education Office v. WCAB (1998) 63 Cal. Comp. Cases 663 Santa Barbara County Education Office, Petitioner v. Workers Compensation Appeals Board, Belinda Gomez, Respondents. Civil No. B119492- Court of Appeal, Second Appellate District, Division Six 63 Cal. Comp. Cas 663; 1998 Cal. Wrk. Comp. LEXIS 4657 April 1, 1998 SUBSEQUENT HISTORY: [**1] Review Denied May 13, 1998 PRIOR HISTORY: W.C.A.B. No. SBA 79618-WCJ Robert Ebenstein SBA WCAB Panel: Commissioners Gannon, Heath, Casey DISPOSITION: Petition for writ of review denied HEADNOTE: Penalties-Delay in Payment of Benefits-WCAB imposed 10-percent penalty under Labor Code § 5814 [Deering's] for defendant's failure to pay temporary disability after date that defendant's unilateral taking of credit against temporary disability for overpayment of permanent disability became contested, despite defendant's earlier agreement with pro per applicant that defendant could take such a credit. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 7.04[9][a], 10.40[3][c], 27.12[2][c].] Applicant sustained a CT injury to her wrists during the period 4/12/95 through 11/12/95, while employed by Defendant Santa Barbara County Education Office. [*664] A Stipulated Award was issued in which Applicant was awarded future medical treatment. After the Award was issued, Applicant sustained another period of TD on an industrial basis. During Applicant's period of TD, she received an overpayment of benefits in the sum of $649.65. Applicant, who proceeded in pro per, agreed to repay this sum at the rate of $50 per month. [**2] Subsequently, the parties agreed that the overpayment would be credited against Applicant's TD. On 8/8/97, Applicant retained counsel. Several days later, Applicant's counsel contacted Defendant, indicating it was his position that there was no basis for the taking of credit against Applicant's TD. Defendant continued to take credit and refused to pay TD. Applicant filed a Petition for Penalty on all TD benefits, for Defendant's failure to pay TD for the period 7/30/97 through 8/21/97. Defendant admitted that Applicant was temporarily totally disabled on an industrial basis, but contended that it had a right to take a credit for prior overpayments of TD and PD and that a penalty Page 1 should not be imposed. The WCJ issued F&A, finding that Defendant had unreasonably delayed payment of TD and awarded Applicant a penalty for the delay. Defendant filed a Petition for Reconsideration, relying on Gomez v. City of Long Beach (1985) 50 Cal. Comp. Cases 639 (WCAB en banc opinion), and contending that the finding was neither supported by substantial evidence nor supported by the law. In his report on reconsideration, the WCJ acknowledged the agreement between Applicant and Defendant, and admitted [**3] that Defendant had a good faith legal basis to take a credit until the time that it received the communication from Applicant's counsel contesting Defendant's right to take credit. Thereafter, the agreement between Applicant and Defendant became null and void, and Defendant was required to justify any further delay. According to the WCJ, Defendant provided no justification or showing of genuine doubt as to its liability to pay TD. The WCJ cited Rohrback v. W.C.A.B. (1979) 144 Cal. App. 3d 896, 193 Cal. Rptr. 558 [48 Cal. Comp. Cases 78], Robertson Prezioso, Inc. v. W.C.A.B. (Lee) (1988) 53 Cal. Comp. Cases 557 (writ denied), and Pierce Enterprises v. W.C.A.B. (Colchado) (1995) 60 Cal. Comp. Cases 1052 (writ denied), as being dispositive of the issue in this case. He noted that, here, Defendant knew Applicant was entitled to the TD benefits in question, and knew that its claim for credit was being contested. Yet, the WCJ pointed out, Defendant believed that it had a right to withhold benefits without a court order even though there would have been substantial PD benefits from which Applicant could have paid the credit. The WCJ distinguished the facts in Gomez, where the WCAB declined [**4] to award a penalty for a unilateral credit because the law was unclear as to how to assert a credit for overpayment of benefits. He noted that the WCAB made it clear in that case that such unilateral credits were improper and would not be tolerated in the future. The WCJ concluded that Defendant's unilateral taking was inappropriate. The WCAB denied reconsideration, adopting and incorporating the WCJ's report without further comment. [*665] Defendant filed a Petition for Writ of Review, contending in pertinent part that it was justified in taking a credit for overpayment and therefore should not have been penalized for failing to pay TD. Relying primarily on the decision in Gomez, Defendant contended that when an overpayment occurs, genuine legal doubt as to liability is present. Applicant responded, contending that Defendant had no legal right to unilaterally take credit and was, therefore, subject to the penalty imposed. Applicant also requested attorney's fees pursuant to Labor Code § 5801 [Deering's]. WRIT DENIED and request for attorney's fees DENIED April 1, 1998. _______________________ COUNSEL: For petitioner-Stockwell, Harris, Widom & Woolverton, by Jeffrey T. Landres For [**5] respondent employee-Hourigan & Holzman, by David T. Holzman Gomez v. City of Long Beach (1985 WCAB en banc) Armando Gomez, Petitioner v. City of Long Beach, Self-Insured, Respondent 110886,110080 Workers Compensation Appeals Board 50 Cal. Comp. Cas 639; 1985 Cal. Wrk. Comp. LEXIS 4023 December 24, 1985 HEADNOTE: [**1] Penalties--Unreasonable Delay--Rehabilitation Benefits--Although defendant's unilateral stopping of vocational rehabilitation temporary disability payments in order to take credit for overpayment did not violate Labor Code section 5814 [Deering's] under the circumstances, the Board stated that such action will not be considered acceptable in the future. [See generally Hanna, Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, § 17.06.] Appeals Board En Banc Opinion COUNSEL: For petitioner--Cantrell & Green For respondent employer--Steven Hertz, Deputy City Attorney OPINION: Reconsideration was granted on July 6, 1983, for further study of the facts and law with respect to the Findings and Award and Findings and Order filed in these cases on April 15, 1983. A Petition for Reconsideration was filed by applicant Armando Gomez in which he questions the workers' compensation judge's (WCJ) finding that defendant employer did not unreasonably refuse or delay vocational rehabilitation temporary disability (VRTD) indemnity payments when it took credit for an overpayment. Applicant argues that the act of unilaterally stopping such payments to take credit in the fact of a Rehabilitation Bureau order requiring payment [**2] of maintenance during the rehabilitation plan violates Labor Code § 5814 [Deering's] n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ and, therefore, a 10% penalty should have been assessed. On the majority vote of the Board, the Chairman has reassigned this case to the Appeals Board En Banc for a Decision After Reconsideration. (§ 115.) For the following reasons, we conclude that defendant has not unreasonably refused or delayed the payment of benefits. Page 1 Applicant sustained industrial injuries while working as a carpenter for the city of Long Beach, permissibly self-insured, on March 9, 1979, (80 LB 110-086) and on April 11, 1980 (80 LB 110-080). On May 24, 1982, the Rehabilitation Bureau found him to be a qualified injured worker and ordered defendant to provide rehabilitation benefits including VRTD [*640] through the completion of the rehabilitation plan. (See the Rehabilitation Bureau's May [**3] 24, 1982, Decision and Order.) On July 19, 1982, defendant sent a letter to applicant (see applicant's exhibit II) claiming in essence that it paid VRTD indemnity from March 9, 1981, to April 10, 1982, at $175.00 per week when the actual weekly rate should have been $154.00. This resulted in an overpayment of $1,194.00 for which defendant stated it would take credit. Applicant's next temporary disability indemnity check would, therefore, be for the period beginning September 4, 1982. According to the Minutes of the December 20, 1982, Hearing, one of the issues raised was penalty for the "delay of temporary disability payments," applicant arguing that the unilateral taking of credit by defendant created an unreasonable delay in payment of compensation. The WCJ issued decisions on April 15, 1983. In 80 LB 110-086 he found that the March 9, 1979, injury caused no permanent disability. In 80 LB 110-080 he found that the April 11, 1980, injury resulted in temporary disability from May 16, 1980, to December 1, 1982 he further found that from April 12, 1980, to April 11, 1982, the temporary total disability indemnity rate was $154.00 per week and thereafter was $175.00 per week. He also [**4] concluded that there was "no basis for a penalty," explaining in his "Statement of Reasons for Decision" that "[d]efendant had a genuine basis to believe that applicant was overpaid. Indeed, defendant did in fact overpay ... [applicant]. Therefore, defendant had a legal basis to terminate further payments to applicant." Following the filing of applicant's Petition for Reconsideration with respect to the issue of penalty, the WCJ wrote in his Report and Recommendation on Petition for Reconsideration: "The main issue here is whether the City of Long Beach acted in such an unreasonable way so as to warrant a penalty. Although petitioner contends that defendant did not comply with the Decision and Order of the Rehabilitation Bureau, the fact is that at no time had the City of Long Beach underpaid the employee. Indeed, quite the contrary, it overpaid employee by $1,194.00 as of July 16, 1982. Thus, even though no further payments were made until September 4, 1982. Even on that date, defendant had fully complied with the Decision and Order of the Rehabilitation Bureau. In conclusion, it cannot be said that defendant did not comply with the Decision and Order of the Bureau. "Unfortunately, [**5] there appears to be a dearth of authority as to the manner in which a defendant employer may claim an overpayment. There is no question but that an employee is subjected to a hardship where payments are suddenly terminated in response to an [*641] overpayment. Perhaps under such circumstances a defendant should be compelled to take any credit for an overpayment against a subsequent award of permanent disability, if any. Arguably, this should be the law, but until codified, it appears that the taking of credit as taken by the defendant herein is not improper. Personally, I feel that this matter should be remedied by amending the Labor Code or the Workers' Compensation Appeals Board Rules and Regulations. In that matter, then a defendant employer will be put on notice as to the proper manner in claiming an overpayment of temporary disability. But until proper notice is given to employers, then there will always be a genuine doubt as to how and when an overpayment may be claimed. Consequently, pursuant to the dictates in Kerley v. WCAB (1971) 4 Cal. 3d 223, 36 Cal. Comp. Cases 152 [93 Cal. Rptr. 192, 481 P.2d 200], [**6] no penalty can be imposed for the unreasonable delay in providing benefits." Defendant was entitled to credit for overpayment of temporary disability indemnity, and it reasonably believed that it had made more than sufficient payments to applicant. Therefore, the taking of credit by defendant was not unreasonable under the facts here presented. When a qualified injured worker is enrolled in a rehabilitation program, "he or she shall continue to receive Page 2 50 Cal. Comp. Cas 639, *; 1985 Cal. Wrk. Comp. LEXIS 4023, **2 temporary disability indemnity." (§ 139.5(c).) Payments are to "be made not less frequently than twice in each calendar month unless otherwise ordered by the Appeals Board." (§ 4651.) When payment of benefits has been unreasonably delayed or refused, "the full amount of the order, decision or award shall be increased by ten per cent." (§ 5814.) The only satisfactory excuse for a delay or refusal in the payment of benefits "is genuine doubt from a medical or legal standpoint as to liability for benefits," and "the burden is on the employer or its carrier to present substantial evidence on which a finding of such doubt may be based." ( Kerley v. WCAB, supra, 4 Cal. 3d at 230.) [**7] In the present matter, the record indicated that defendant had reason to believe that it had paid VRTD indemnity at an excessive rate for a period of time and was, therefore, entitled to credit for this overpayment. The crucial question is whether, assuming that there was an overpayment, defendant acted reasonably in unilaterally suspending payments for a period of time in order to take credit. Our extensive research of the workers' compensation law, including our Rules of Practice and Procedure, the Administrative Director's Rules and Regulations, and the Rehabilitation Bureau's Policy and Procedural Manual, fails to reveal any formal process which an employer must follow in order to obtain credit for overpayment. More specifically, there is neither statutory nor case law presently existing which explains the procedure to be followed by an employer when it believes that there has been [*642] an overpayment of VRTD indemnity. When it took credit for the overpayment, defendant genuinely believed that it had paid more than its obligations under the workers' compensation law. And in view of the fact that there is lacking any formal regulations regarding what procedure to follow, [**8] the unilateral taking of credit by defendant in this situation is not violative of § 5814. ( County of Los Angeles v. WCAB (King), (1980) 104 Cal. App. 3d 933, 941, 45 Cal. Comp. Cases 248[168 Cal. Rptr. 789].) Although we find no unreasonable delay or refusal to pay benefits on defendant's part, by way of this opinion we alert the compensation community that unilateral taking of credit under circumstances such as these in the future will be considered unreasonable. VRTD indemnity payments are important for the maintenance of a qualified injured worker during his or her participation in a rehabilitation plan. Unilaterally and intentionally suspending benefits for the purpose of taking credit for an overpayment can be a substantial impediment to the injured worker's ability to continue participating in the plan. The employer must, therefore, assure that the taking of credit does not jeopardize the workers' ability to continue participation. Employers or carriers in such a predicament should alert the Rehabilitation Bureau and the injured worker of the situation. The unilateral taking of credit for overpaid VRTD indemnity will [**9] no longer be acceptable. If an overpayment has been made, the employer or its carrier should communicate this fact to the injured worker and the Rehabilitation Bureau. All parties can then determine how credit can be taken without impeding the rehabilitation plan. And although no rules currently exist with respect to this situation, the Board suggests that appropriate rules or procedures be adopted by the Administrative Director or the Rehabilitation Bureau. (Examples of suggested procedures are set forth in Rocha v. Zenith Insurance Company (1982) 47 Cal. Comp. Cases 377 (Board en banc decision).) For the foregoing reasons, IT IS ORDERED that the April 15, 1983, Findings and Award and Findings and Order filed in these cases are AFFIRMED. WORKERS' COMPENSATION APPEALS BOARD Charles L. SwezeyI concur CONCURBY: Gordon R. GainesJack R. FentonMarilyn Murata-DemetreParticipating [*643We] concur (See Concurring Opinion)C. Gordon Taylor, ChairmanMarilyn LazarCONCURRING OPINIONWhile we concur with the majority opinion as to the disposition of the penalty issue in this case, we respectfully demur to its suggestion that these Page 3 50 Cal. Comp. Cas 639, *641; 1985 Cal. Wrk. Comp. LEXIS 4023, **6 same factual circumstances will justify [**10] a penalty assessment in the future.At the time of temporary cessation of VRTD for the purpose of taking credit for rate discrepancy overpayment, the defendant City of Long Beach was subject to a Rehabilitation Bureau order obliging it to provide this benefit "at the legal temporary disability rate." Upon file audit discovery of this benefit overpayment made during a period ending July 16, 1982, on July 19 of that year defendant notified both applicant and his attorneys of the error. The written notification specified both the amounts due and the actual payments made during the period in question. It stated the amount of credit that would be taken due to the overpayment and also indicated when payments would resume. In subsequent litigation of this and other issues the WCJ determined that in fact the overpayment had occurred as asserted by the employer.As noted by the majority, our current statutory workers' compensation system prescribes no formal process which an employer must follow in order to obtain credit for benefit overpayment. We do not believe that it was intended that this Board now, or at any time, establish such a process by judicial decree. While we fully subscribe to [**11] the majority's suggestion that an employer should recognize and attempt to ameliorate the possible adverse consequences of complete benefit cessation to rectify overpayment and should seek conciliatory guidance from the Bureau if the parties are unable to agree upon a revised payment schedule, we do not believe that these procedures are currently required as a matter of law.To the contrary it appears to us that current statutory and decisional law requires one obliged to provide workers' compensation benefits in this state to promptly perfect his or her overpayment credit rights or hazard a very real possibility of losing them. While Labor Code § 4909[Deering's] clearly evinces a legislative intent that credit should be allowed in determining liability in circumstances such as this case presents, it is also apparent that such allowance is a matter of Appeals Board discretion. ( Herreras v. WCAB (1969) 71 Cal. 2d 254, 34 Cal. Comp. Cases 382.) Thus the Board has denied credit for temporary disability overpayment due to rate discrepancy against liability [*644] n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City [**12] of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ n* ---------------------------Footnotes----------------------- Maples v. WCAB (1980) 45 Cal. Comp. Cases 1106 City of Los Angeles v. SCAB and Peterson (1983) 48 Cal. Comp. Cases 24 (Writ Denied). ----------------------------------EndFootnotes------------------------------ In the instant proceeding, it is apparent that the indemnity paid in excess of the statutorily required rate constituted a pre-payment of employer's future obligation to provide this form of benefit. Indeed, it is not unlike the pre-payment credit allowed an employer for the employees' third party recovery (see Oldaker v. McGrath Steel Company (1981) 46 Cal. Comp. Cases 186, WCAB en banc opinion). If the prompt redemption of indemnity overpayment by means of taking credit against [**13] future payments as done in this case is to be modified or otherwise curtained, surely it is for the legislature to accomplish by appropriate statutory change rather than by this judicial body through case decision.WORKERS' COMPENSATION APPEALS BOARDC. Gordon Taylor, ChairmanMarilyn Lazar DIGESTS OF CASES DENIED JUDICIAL REVIEW Page 4 50 Cal. Comp. Cas 639, *643We; 1985 Cal. Wrk. Comp. LEXIS 4023, **9 Hayoshi - deals with no retro credit for TD until med report is received Chester Haynoski, Petitioner v. Workers' Compensation Appeals Board of the State of California; Polycarbon, Inc.; and Zurich American Insurance Company, Respondents Civil No. B044957- 55 CCC 9555 CCC 9555 Cal Comp Cases 9555 Cal. Comp. Cases 95 Court of Appeal, Second Appellate District,Division 5 April 4, 1990April 4, 19901990 Editorial Information: Prior History W.C.A.B. No. 85 VN 151352-WCAB Judge Harvey Stark Disposition: Petition for writ of review denied Counsel: For petitioner-Law Offices of S. & S.H. Cohen, by Sheldon Cohen For respondent employer-Zonni, Ginocchio & Taylor, by Thomas J. Hedrick Editorial Information: Headnotes Temporary Disability-WCJ's finding that employee was overpaid temporary disability benefits was not based on substantial evidence. [See generally, Hanna. Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, ? 13.02.] Chester Haynoski filed for Workers' Compensation benefits alleging industrial injury to his back, chest, and legs from a lifting injury on May 21, 1984. Haynoski was provided temporary disability benefits and continued medical care. Eventually he was examined by an agreed medical examiner who opined that Haynoski's condition {96}had become permanent and stationary around November 21, 1984, six months following the injury. Haynoski had been paid temporary disability benefits, pursuant to his treating physician's reports, through September 11, 1985. At hearing, the defendant requested a credit for overpayment of temporary disability for the period from November 21, 1984 through September 11, 1985 based on the agreed medical examiner's report. The workers' compensation judge allowed the credit based on the agreed medical examiner's recommendations. Haynoski petitioned for reconsideration, contending that the judge erred in finding him permanent and stationary as of November 21, 1984 and in allowing defendant a credit for overpayment of temporary disability. The Appeals Board granted reconsideration, and found that Haynoski's condition was not permanent and stationary until January 18, 1985, when he was released to work by his treating physician. The Board rejected the agreed medical examiner's opinion as to a shorter temporary disability period as not based on substantial evidence given the fact that the agreed medical examiner only examined Haynoski on April 28, 1987. The Board ordered credit for overpayment of temporary disability from January 18, 1985 through September 11, 1985 only. In his Petition for Writ of Review, Haynoski asserted that the Board erred in finding any overpayment of temporary disability, and that substantial evidence did not support such a finding. WRIT DENIED April 4, 1990. Paul Rohrback, Petitioner v. Workers Compensation Appeals Board of the State of California; M & J Logging; and Employee Benefits Insurance Company, Respondents. 53265 Court of Appeal, First Appellate District, Division 1 48 Cal. Comp. Cas 78; 1983 Cal. Wrk. Comp. LEXIS 3584 January 25, 1983 PRIOR HISTORY: [**1] W.C.A.B. No. EUR 10120 DISPOSITION: Proceeding to review a decision of the Workers' Compensation Appeals Board holding that a workers' compensation insurer had not unreasonably withheld benefits when it unilaterally asserted a credit without first adjusting the amount of the credit or obtained a definitive ruling from a judge as to the amount of the credit. Decision annulled. HEADNOTE: Penalties--A workers' compensation insurer unreasonably delayed payment of workers' compensation benefits where it unilaterally took a credit against liability for permanent disability without first attempting to adjust the amount or the credit as required in a Findings and Award. [See generally Hanna. Cal. Law Emp. Inj. and Workmen's Comp., Vol. 2, § 17.06[2].] COUNSEL: For petitioner--Abraham Virdeh For respondent insurer--Sedgwick, Didert, Moran and Arnold, by John Bennett OPINIONBY: Holmdahl, J. OPINION: This case presents a narrow issue of construction under Kerley v. W.C.A.B. (1971) 4 Cal. 3d 223 [36 Cal. Comp. Cases 152, 93 Cal. Rptr. 192, 481 P.2d 200], which set the standard for determining when employers are liable for a 10% increase in a worker's compensation award because [**2] of unreasonable delay in making payments, under Labor Code section 5814 [Deering's]. n1 ---------------------------Footnotes----------------------- Section 5814 reads as follows: "When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 percent. The question of delay and the reasonableness of the cause therefor shall be determined by the appeals board in accordance with the facts. Such delay or refusal shall constitute good cause under Section 5803 to rescind, alter or amend the order, decision or award for the purpose of making the increase provided for herein." We are asked to decide how broad a meaning the Supreme Court intended for the term "liability" in holding "that the only satisfactory excuse for delay in payment of disability benefits ... is genuine doubt from a medical or legal standpoint as to liability for benefits..." ( Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 230.) n2 ---------------------------Footnotes----------------------- [**3] We reject petitioner's second argument, that the board erred in incorporating by reference the findings of the worker's compensation judge as the board's own. (See, e.g., Gaiera v. W.C.A.B. (1969) 271 Cal. App. 2d 246, 248 [34 Cal. Comp. Cases 182, 76 Cal. Rptr. 656].) ----------------------------------EndFootnotes------------------------------ [*80] Employer M&J Logging and its insurance carrier Employee Benefits Insurance Company (collectively "EBIC") contend that Kerley insulates them from the statutory penalty because of their doubt of liability to make further payment of compensation until they had fully offset overpayments and before the final order was issued. The Worker's Compensation Appeals Board (board) accepted this rationale. We hold, for a number of reasons, that EBIC's position is incorrect. I There is and has been no dispute between the parties on the underlying question of liability. n3 ---------------------------Footnotes----------------------- Section 3600, which defines liability, follows: ----------------------------------EndFootnotes------------------------------ Petitioner, then 50 years old, [**4] was employed by M&J Logging in its logging operations when, on July 14, 1977, a log weighing several tons rolled over him. He suffered internal injuries as well as injuries to his ribs, clavicle, and an arm. He had not returned to work again as of the last evidentiary hearing below. Most of the proceedings below were devoted to fixing the extent of petitioner's permanent disability. The case was submitted to the board's [*81] rating bureau four times, resulting in consecutive recommended permanent disability ratings of 80%, 82 1/4%, 86 1/4%, and--the figure ultimately utilized by the board in its award--96 1/4%. At no time did EBIC dispute any of the ratings since the earliest pleading stages of the case, EBIC has admitted basic liability. Thus, it is given that petitioner suffered an "injury ... arising out of and in the course of the employment...," which was not rendered non-compensable under any of the subdivisions of section 3600. II At a hearing on September 27, 1978, pursuant to the parties' stipulation, a board rehabilitation consultant ordered EBIC to pay temporary disability benefits of $154.00 per week during petitioner's rehabilitation program for "up to 90 days." [**5] The consultant added not only that "it would appear appropriate to suspend further rehabilitation activities at that time [90 days hence]," but also that "Mr. Rohrback is, of course, entitled to receive temporary disability benefits during his involvement in the rehabilitation process until it has been concluded." During the 90-day period (ending December 26, 1978), and moreover for approximately eight months thereafter, EBIC paid petitioner at the $154.00 per week rate. Then, in August, 1979, EBIC formally requested termination of rehabilitation benefits, retroactive to December 26, 1978. The rehabilitation consultant, finding that further rehabilitation efforts "would not be productive or appropriate at this time," suspended temporary benefits on August 17, 1979, without any reference to retroactivity. EBIC never directly contested this ruling, though the $154.00 weekly amount was $84.00 greater than the amount for which EBIC would otherwise have been obligated in the form of retroactive benefits for permanent disability in the ultimate award. n4 ---------------------------Footnotes----------------------- See section 4650, which reads: ----------------------------------EndFootnotes------------------------------ [**6] Instead, EBIC argued in the hearings on permanent disability compensation that in the final award it should recover a credit of $84.00 per week for all the weeks between December 26, 1978, and August 17, 1979. n5 ---------------------------Footnotes----------------------- Eventually, the board found that EBIC was not entitled to any such credit, mainly because EBIC had failed to contest the issue in the proper manner i.e., by challenging the rehabilitation consultant's order of August 17. Instead, EBIC had introduced the issue in a different setting without making it clear that the issue had already been resolved adversely to EBIC by the consultant. ----------------------------------EndFootnotes------------------------------ [*82] On June 16, 1980, the workers' compensation judge (judge) issued his findings and award. The relevant finding was that "[d]efendants are entitled to credit for overpayment of temporary disability indemnity in an amount to be adjusted by the parties..." (Emphasis added.) The relevant portion of the award read: "... [p]ermanent disability indemnity of [$33,547.50] payable at $70.00 per week beginning 12/5/78 and not less than twice each calendar [**7] month thereafter until paid in full, ... less credit for overpayment of temporary disability indemnity in an amount to be adjusted by the parties for the period from 12/2/78 [sic] through 8/17/79..." (Emphasis added.) Petitioner requested reconsideration by the board, and in due course, on July 21, 1980, the judge made his report to the board, and served it on the parties. Inter alia, the report said: "[T]he fact that such credit was to be in an amount to be adjusted by the parties clearly infers [sic] that if the parties cannot agree the matter must be back before the Board to make a decision on the proper amount." (Emphasis added.) In the interim, however, EBIC took unilateral action. The insurance carrier sent petitioner a letter, dated July 9, 1980, reciting (1) that it calculated a credit of $2,242.90, (2) that this amount would be credited at the rate of $70.00 per week until satisfied, and, therefore, (3) petitioner would receive his first actual payment in February, 1981. Petitioner's counsel immediately sent to EBIC's counsel a letter protesting the unilateral action and threatening to move for penalties under section 5814 if payments were not initiated within ten days. [**8] EBIC's counsel replied with a terse letter making reference to the carrier's July 9 letter, clearly implying that EBIC absolutely maintained the position stated in that letter. n6 ---------------------------Footnotes----------------------- In February, 1981, instead of reinstituting payments as promised, EBIC sent to petitioner another letter. Without apology or even acknowledgement of error, the letter recited that the credit had now grown to $3,012.00, and therefore the first payment would be forwarded on May 4, 1981. ----------------------------------EndFootnotes------------------------------ Petitioner thereupon moved for imposition of the section 5814 penalty. The judge initially granted the motion. However, EBIC petitioned for reconsideration, arguing in essence that the Kerley doctrine contemplates within its protection from penalties a doubt as to whether present payments are due, when despite the employer's conceded liability for compensation, [*83] the employer also believes it is entitled to a credit. Since EBIC doubted whether present payments were due, it argued, it doubted whether it was "liable" for payments. In his following report to the board, the judge [**9] accepted EBIC's reasoning, and reversed his former position. The board likewise accepted EBIC's argument, and ordered the penalty stricken. It is for relief from this order that petitioner has come to this court. III We examine Kerley and conclude that it does not support EBIC's position. "[T]he only satisfactory excuse for delay in payment of disability benefits, whether prior to or subsequent to an award, is genuine doubt from a medical or legal standpoint as to liability for benefits, and ... the burden is on the employer or his carrier to present substantial evidence on which a finding of such doubt may be based." ( Kerley v. W.C.A.B., supra, 4 Cal. 3d, 223, 230.) The cardinal rule as quoted leaves little room to doubt that "liability" is intended in the statutory, or common, sense the remainder of Kerley removes all doubt. The court noted that its review of case law revealed that only where "there was substantial doubt as to whether any liability existed" ( id., at p. 230, fn. 9 emphasis in original) has a penalty award been annulled. [**10] It noted that a dispute as to extent of liability "is obviously no reason to withhold any advances" ( id., at p. 227, fn. 5), because the employer can get a hearing on the disputed issue "without prejudicial delay in virtually every case except those in which the employer has good cause to believe that there is clearly no permanent disability." ( Id., at p. 227, fn. 5 emphasis added.) Also, the Kerley court equated undisputed evidence of an industrial injury which caused a condition not subject to improvement, with "no evidence whatever to sustain" a finding of genuine doubt from a medical or legal standpoint as to liability. ( Id., at pp. 229 --230.) The doubt professed by EBIC in this case does not reasonably fit within the narrow exception intended by the Kerley court. To whatever extent EBIC's position actually is that there was no delay in payments, we reject it. EBIC's unilateral action was a direct statutory violation. Sections 4650 (see fn. 4, ante, page 5) and [**11] 4651 provide, respectively, that "a [permanent] disability payment shall be made" on the fourth day after the injury is permanent or temporary benefits have stopped, and that the payments "shall thereafter be made not less frequently than twice in each calendar month, unless otherwise ordered by the appeals [*84] board." Given liability in the general sense, sections 4650 and 4651 impose a mandatory duty on the employer. EBIC suggests that the proper step was for petitioner to move, under section 5100, for a lump sum payment and an order as to time of its payment. But under section 5100, either party may so move obviously, in this instance the only relevance of section 5100 is that it provided one of many mechanisms available to EBIC as a means to resolve the dilemma it perceived between its manifest statutory duty to pay petitioner and the asserted privilege of recovering the credit "up front." In seeking to protect what it viewed as an overpayment, EBIC could have sought either: 1) a definitive ruling by the judge as part of his June 16, 1980, findings and award 2) an adjustment of the amount with petitioner promptly upon the making of the award containing the "to be adjusted adjusted [**12] by the parties" provision or 3) a further hearing for determination of that issue by the judge. Instead, EBIC chose to act unilaterally and to withhold all payments. We conclude that in terms of section 5814, it was "unreasonabl[e]" for EBIC to construe the judge's order, and his subsequent report discussing that order, as permitting a unilateral termination of payments. The order plainly implied that the parties should attempt to resolve the issue of the credit, since years of payments could be made before the credit would be in any jeopardy and that, if they failed to resolve the issue, the parties should return to the judge or the board for directions. There is no other reasonable interpretation of the order. Thus, another answer to EBIC's contention that it had a "genuine doubt" as to whether the credit could be recovered as an offset against the first payments in toto, is that the order itself, to the contrary, left no room for reasonable doubt on this subject. We hold that there was no evidence whatsoever to support the board's finding that EBIC, when it withheld payments from petitioner, had a genuine doubt from a legal standpoint as to its liability for benefits. (§ 5952, [**13] subd. (d) Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 230.) EBIC's unilateral withholding of payments plainly violated both the Labor Code and the order to which EBIC was subject. The award dated June 3, 1981, is annulled and the case is remanded with directions to enter a new award, in the same principal amount, with an additional penalty of 10% of the total amount of permanent disability benefits awarded. (Cf. Gallamore v. W.C.A.B. (1979) 23 Cal. 3d 815, 824-826 [44 Cal. Comp. Cases 321, 153 Cal. Rptr. 590, 591 P.2d 1242].) The award shall, to the extent necessary, specify that any of such sum as may [*85] previously have accrued and remains due and unpaid to petitioner under the terms of the June 3, 1981, order shall be paid in full within ten days. We do not decide the amount nor the timing and manner of recognition of any overpayment to which EBIC may have been entitled, inasmuch as that issue is not before this court. (See Kerley v. W.C.A.B., supra, 4 Cal. 3d 223, 227, fn.5.) [**14] We concur CONCURBY: Racanelli, P.J.Newsom, J. [*86] Further statutory references in this opinion will be to provisions of the Labor Code, except as otherwise indicated.' s work-related duties, except where such activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision. Failure of the employer to post such a notice shall not constitute an expression of intent to waive the provisions of this subdivision." In this opinion, unless otherwise indicated we shall refer to "liable" and "liability" in the common or general sense intended by section 3600. The board's ultimate finding on the credit issue is not before this court, and we do not review it. We are not concerned here with EBIC's entitlement to the credit, but rather with the justification for EBIC's belief, and the propriety of its conduct based upon that belief, that the credit was due immediately when the award of permanent disability indemnity was made. APPEALS BOARD DECISIONS Hollie Rutkowski, RN, JD, MBA, Esq. The Compensation Law Center Sacramento, CA   95834 T:916.974.0424 F:916.974.0428 From: "Matthew Verduzco, lawnet listserver" <listsender-lawnet@lawnet.caaa.org> To: "Statewide List Service" <lawnet@lawnet.caaa.org> Sent: Friday, January 23, 2026 10:55:17 AM Subject: Re: [lawnet] NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) List: lawnet Sent By: Bonnie Binder-Wilson Reply To Sender Reply To List Search Settings Did anyone post the 2 cases Steve Schulman requested?  I would like to see them also. Bonnie Binder Wilson, Esq. Wilson & Wisler, LLP Attorneys at Law 21 Maple Street Salinas, California  93901 Telephone: (831) 269-3787 Facsimile: (831) 269-3783 www.doubleulaw.com *************** PRIVATE AND CONFIDENTIAL **************** THIS ELECTRONIC MESSAGE TRANSMISSION IS A COMMUNICATION FROM THE LAW FIRM OF WILSON & WISLER, LLP.  THIS MESSAGE CONTAINS INFORMATION PROTECTED BY THE ATTORNEY/CLIENT PRIVILEGE AND IS CONFIDENTIAL OR OTHERWISE THE EXCLUSIVE PROPERTY OF THE INTENDED RECIPIENT OR WILSON & WISLER, LLP.  THIS INFORMATION IS SOLELY FOR THE USE OF THE INDIVIDUAL OR ENTITY THAT IS THE INTENDED RECIPIENT. From: Steve Schulman (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> Sent: Tuesday, January 20, 2026 2:38 PM To: Statewide List Service <lawnet@lawnet.caaa.org> Subject: [lawnet] NEED CASES MAPLES AND RYERSON (TD OVERPAY CREDIT CASES) List: lawnet Sent By: Steve Schulman Reply To Sender Reply To List Search Settings Can someone kindly send these cases. Thank you. Steven B. Schulman Law  Office of Steven B. Schulman 13025 Danielson Street, Suite 260 Poway, CA 92064 (858) 863-8000, Fax (858) 863-6901

"M. Hollie Rutkowski" Date: October 10, 2016 10:42:00 AM Subject: Re: Re: Judge Discretion on Awarding Credit for TD Overpayment Reply to list Reply to sender Print Attachments: tdop n0 credit against pd.doc (89 K) tdop credit discretionary.pdf (92 K) td op jc pennry v wcab (edwards).doc (60 K) td op case weigel.pdf (188 K) td op & 4062 jcpenney case.rtf (147 K) td op - retro p&s date-borges.pdf (22 K) List: lawnet Sent By: Hollie Rutkowski Reply To Sender Reply To List Search Settings Also see JC Penney that addresses retro P&S date, the Def has to have sent out a timely 4062 objection. I have attached other TDOP cases. Perhaps one will fit your facts. Hollie Rutkowski, RN, JD, MBA, Esq. The Compensation Law Center Sacramento, CA   95834 T:916.974.0424 F:916.974.0428 From: "ron ehrman (lawnet listserver)" <listsender@lawnet.caaa.org> To: "Statewide List Service" <lawnet@lawnet.caaa.org> Sent: Sunday, October 9, 2016 11:09:35 PM Subject: Re:[lawnet] Re: Judge Discretion on Awarding Credit for TD Overpayment List: lawnet Sent By: ron ehrman Reply To Sender Reply To List Search Settings See Maples case. a lot of factors I think most common issue/ fact pattern is Def paying TD per PTP, but AME later sets at earlier date. If the PQME sets at earlier date, there's case law WCJ may rely upon the PTP, where PQME speculates on P&S date prior to exam. rpe los angeles -----Original Message----- From: joelthomas@mac.com Sent: October 08, 2016 6:21:21 PM To: lawnet@lists.trialsmith.com Subject: Re: Judge Discretion on Awarding Credit for TD Overpayment Who caused the error of the overpayment. Adjuster at fault or lack of diligence or did the injured worker cause it? JOEL J. THOMAS Attorney At Law and Partner DiMarco | Araujo | Montevideo 1324 N. Broadway|Santa Ana|CA 92706 Tel (714) 835-6990 Fax (714) 835-1728 JThomas@damfirm.com www.damfirm.com < http://www.damfirm.com/ > [cid:image001.png@01CD05BC.617FD310]< http://www.damfirm.com/ > Privileged and Confidential Communication This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. > On Oct 7, 2016, at 4:07 PM, Ullasini Joy Dholakia (lawnet listserver) wrote: > > > List: lawnet Sent By: Ullasini Joy Dholakia > Reply To Sender > Reply To List > Search > Settings > > What are the guidelines for judge discretion when deciding whether or not to award a credit for overpayment of TD? > > Ullasini (Joy) Dholakia, Attorney At Law Dholakia & Associates 151 N Kraemer Blvd, Suite 120 | Placentia, CA 92870 (714) 854-0529 (O) | (714) 854-0525 (F) > >

This is the case. I have petitioned for sanctions using this case becasue the of the sentiment, " The unilateral taking of credit for overpaid VRTD indemnity will no longer be acceptable," and the fact that this sentiment was expressed in 1985, so it should be common knowledge. to all Claims Examiners.

"Michael C. Grimes" Date: January 24, 2007 6:51:00 PM Subject: RE: Dr. Nicole Chitnis--Norcal Reply to list Reply to sender Print Yes, she’s pretty good.  Up-the-middle rater.  Detailed, good and credible reports. Michael C. Grimes LAW OFFICES OF MICHAEL C. GRIMES 795 4th Ave., Suite 207 Redwood City, CA  94063-3936 650-261-1754 mgrimes@sbcglobal.net IMPORTANT: THIS ELECTRONIC MAIL MESSAGE, INCLUDING ANY ATTACHED FILES, IS BEING SENT BY OR ON BEHALF OF A LAWYER; IT IS CONFIDENTIAL AND IT MAY CONTAIN OR CONSTITUTE INFORMATION PROTECTED BY THE ATTORNEY-CLIENT AND/OR THE ATTORNEY WORK-PRODUCT PRIVILEGES.  IF THE PERSON ACTUALLY RECEIVING THIS MESSAGE, OR ANY OTHER READER OF THIS MESSAGE, IS NOT THE NAMED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOT AUTHORIZED TO RETAIN, READ, COPY OR DISSEMINATE THIS COMMUNICATION OR ANY PART OF IT.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE LAW OFFICES OF MICHAEL C. GRIMES AT (650) 261-1754.  THANK YOU. -----Original Message----- From: Jim Lazar [mailto:lazar@inreach.com] Sent: Wednesday, January 24, 2007 6:13 PM To: Statewide List Service Subject: Dr. Nicole Chitnis--Norcal Dr. Newton, our AME has suggested that his associate Dr. Nicole Chitnis provide a re-eval to address future medical needs, as he is scheduling over a year out for appointments.  Has anyone dealt with this doc? Jim Lazar lazar@inreach.com Auburn --- You are currently subscribed to lawnet as: mgrimes@sbcglobal.net. To unsubscribe click here: http://lawnet.caaa.org/u?id82X&n=l=wnet or send a blank email to leave-lawnet-1582X@lawnet.caaa.org

"Jim Lazar" Date: January 24, 2007 6:13:00 PM Subject: Dr. Nicole Chitnis--Norcal Reply to list Reply to sender Print Dr. Newton, our AME has suggested that his associate Dr. Nicole Chitnis provide a re-eval to address future medical needs, as he is scheduling over a year out for appointments.  Has anyone dealt with this doc? Jim Lazar lazar@inreach.com Auburn

John C. Dunn, Esq. Attorney at Law Law Offices of John C. Dunn 1550 The Alameda Ste. 160 San Jose, CA 95126 Telephone: 408.351.1085 | Facsimile: 408.904.5966 j ohn@jcdunnlaw.com NOTICE: The information contained in this email message is confidential and may also contain privileged attorney-client information or work product. The information is intended only for use of the individual or entity to whom it is addressed. If you are not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any use, dissemination, distribution or copying of this communication is strictly prohibited. If you have received the email message in error, please immediately notify the sender by reply email and destroy all copies of the original message. To comply with U.S. Treasury regulations, we advise you that any discussion of Federal tax issues in this communication was not intended or written to be used, and cannot be used, by any person (i) for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service, or (ii) to promote, market or recommend to another party any matter addressed herein. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message.

From: Todd Tatro (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> Sent: Friday, October 25, 2024 2:42:21 PM To: Statewide List Service <lawnet@lawnet.caaa.org> Subject: [lawnet] Need Input on Ophthalmology & Otolaryngology Panels

"Joseph Pluta" Date: August 20, 2024 4:40:00 PM Subject: Re: So Cal Opthamology Panel Reply to list Reply to sender Print List: lawnet Sent By: Joseph Pluta Reply To Sender Reply To List Search Settings Thank you Art, I appreciate the candor. Joe Pluta Bakersfield . . . -----Original Message----- From: acsillaglaw@gmail.com Sent: August 20, 2024 11:46:00 AM To: lawnet@lists.trialsmith.com Subject: Re: So Cal Opthamology Panel I could not tell from his report. The issue was very unique and I don't want to mislead you by saying conservative or liberal by this one report. I wish I could be more helpful. Art *Arthur Csillag* *acsillaglaw@gmail.com <ascsillaglaw@gmail.com>* 2410 W. Magnolia Blvd. / Burbank, CA 91506 O (818) 558-7225 / Cell (818) 219-4264 / Fx (818) 558-7151 Law Office of Arthur Csillag On Mon, Aug 19, 2024 at 1:51 PM Joseph Pluta (lawnet listserver) < listsender-lawnet@lawnet.caaa.org> wrote: > *List:* lawnet *Sent By:* Joseph Pluta <joe.pluta.law@att.net> > Reply To Sender > <joe.pluta.law@att.net?subject=Re%3A%20So%20Cal%20Opthamology%20Panel> > Reply To List > <lawnet@lawnet.caaa.org?subject=Re%3A%20So%20Cal%20Opthamology%20Panel> > Search <http://www.caaa.org/index.cfm?pg=search> > Settings > <http://www.caaa.org/index.cfm?pg=listviewer&lsAction=listSettings> > > What is your take on his reporting? Fair, pro-applicant or conservative? > > Thank you Art! > > Joe Pluta > Bakersfield > > > > . . . > > > -----Original Message----- > > From: acsillaglaw@gmail.com > Sent: August 19, 2024 1:47:00 PM > To: lawnet@lists.trialsmith.com > Subject: Re: So Cal Opthamology Panel > > I never did take his depo as the treating doctor agreed with him and we are > attempting to settle the case. > Art > > *Arthur Csillag* > *acsillaglaw@gmail.com <ascsillaglaw@gmail.com>* > 2410 W. Magnolia Blvd. / Burbank, CA 91506 > O (818) 558-7225 / Cell (818) 219-4264 / Fx (818) 558-7151 > Law Office of Arthur Csillag > > On Mon, Aug 19, 2024 at 11:41 AM Joseph Pluta (lawnet listserver) < > listsender-lawnet@lawnet.caaa.org> wrote: > > > *List:* lawnet *Sent By:* Joseph Pluta <joe.pluta.law@att.net> > > Reply To Sender > > <joe.pluta.law@att.net?subject=Re%3A%20So%20Cal%20Opthamology%20Panel> > > Reply To List > > <lawnet@lawnet.caaa.org?subject=Re%3A%20So%20Cal%20Opthamology%20Panel> > > Search <http://www.caaa.org/index.cfm?pg=search> > > Settings > > <http://www.caaa.org/index.cfm?pg=listviewer&lsAction=listSettings> > > > > Arthur, > > > > Did you ever get a final report from Lazar? Were you able to move him at > > depo? > > > > Thanks for the insight! > > > > Joe Pluta > > Bakersfield > > > > > > > > . . . > > > > > > -----Original Message----- > > > > From: acsillaglaw@gmail.com > > Sent: January 03, 2024 7:01:00 PM > > To: lawnet@lists.trialsmith.com > > Subject: Re: So Cal Opthamology Panel > > > > I just received a report from Dr. Lazar and it's very hard to judge on > this > > one case. > > > > The issue I had was a very rare RVO Retro Venous Occlusion that can occur > > with high blood pressure. > > My argument is the stress over 10 years contributed to the RVO and he was > > on the fence on this. > > > > I am trying to get some input from the Ophthalmologist treater, and may > be > > able to sway Dr. Lazar through a potentially > > good report and then depose him. > > > > My client said he was pretty cold with him, but that may not be a > criteria > > to judge as the reports are what matters. > > > > My sense is that he is conservative but may be swayed at depo. I need to > > deal with Lazar more to get a real feel if I can > > wholeheartedly recommend him. > > > > Arthur Csillag > > Burbank > > > > On Wed, Jan 3, 2024 at 4:46 PM Larry D. Rosenstein (lawnet listserver) < > > listsender-lawnet@lawnet.caaa.org> wrote: > > > > > *List:* lawnet *Sent By:* Larry D. Rosenstein < > rosenstein1@earthlink.net > > > > > > Reply To Sender > > > < > > > rosenstein1@earthlink.net?subject=Re%3A%20%5Blawnet%5D%20So%20Cal%20Opthamology%20Panel > > > > > > Reply To List > > > < > > > lawnet@lawnet.caaa.org?subject=Re%3A%20%5Blawnet%5D%20So%20Cal%20Opthamology%20Panel > > > > > > Search <http://www.caaa.org/index.cfm?pg=search> > > > Settings > > > <http://www.caaa.org/index.cfm?pg=listviewer&lsAction=listSettings> > > > > > > Hi Laila, > > > You may want to contact nadine cain at 310-457-9116 as she is the > > > representative for Dr. Lazar. Best of luck, Larry. > > > From, > > > > > > Larry D. Rosenstein > > > Law Offices of Larry D. Rosenstein > > > 325 N Larchmont Blvd. # 620 > > > Los Angeles, CA 90004 > > > Tel. (310) 478-5445 > > > Fax (310) 478-7175 > > > e-mail: ldrlaw@earthlink.net > > > e-mail: thelaw@ldrlawus.com > > > > > > > > > *This message is intended only for the use of the individual to which > it > > > is addressed and may contain information that is > > > privileged/confidential/and exempt from disclosure under applicable > law. > > > Law Office of Larry D. Rosenstein* > > > > > > > > > > > > On Jan 3, 2024, at 3:58 PM, Laila Jacobsma (lawnet listserver) < > > > listsender-lawnet@lawnet.caaa.org> wrote: > > > > > >  > > > > > > *List:* lawnet *Sent By:* Laila Jacobsma <lhj@jacobsmalaw.net> > > > Reply To Sender > > > <lhj@jacobsmalaw.net?subject=Re%3A%20So%20Cal%20Opthamology%20Panel> > > > Reply To List > > > <lawnet@lawnet.caaa.org?subject=Re%3A%20So%20Cal%20Opthamology%20Panel > > > > > Search <http://www.caaa.org/index.cfm?pg=search> > > > Settings > > > <http://www.caaa.org/index.cfm?pg=listviewer&lsAction=listSettings> > > > > > > Does anyone have experience with either Opthamologists: Alexander > > Knezevic > > > and/or David Lazar? These are the two remaining docs on the panel and > the > > > archives are pretty silent. I appreciate your thoughts. Thank you! > > > > > > > > > > > > > > > > > > > > >

I never did take his depo as the treating doctor agreed with him and we are attempting to settle the case. Art Arthur Csillag acsillaglaw@gmail.com 2410 W. Magnolia Blvd. / Burbank, CA  91506 O  (818) 558-7225  /  Cell (818) 219-4264 / Fx  (818) 558-7151 Law Office of Arthur Csillag

Attached is a sample Vigil letter to multiple QMEs/AMEs re multiple impairments.  Suggestions welcome. Roger Murphy South Lake Tahoe

Best regards, Laila Havre Jacobsma JACOBSMA LAW APC Sent from my iPhone

From, Larry D. Rosenstein Law Offices of Larry D. Rosenstein 325 N Larchmont Blvd. # 620 Los Angeles, CA 90004 Tel. (310) 478-5445 Fax (310) 478-7175 e-mail: ldrlaw@earthlink.net e-mail: thelaw@ldrlawus.com This message is intended only for the use of the individual to which it is addressed and may contain information that is privileged/confidential/and exempt from disclosure under applicable law. Law Office of Larry D. Rosenstein

From, Larry D. Rosenstein Law Offices of Larry D. Rosenstein 325 N Larchmont Blvd. # 620 Los Angeles, CA 90004 Tel. (310) 478-5445 Fax (310) 478-7175 e-mail: ldrlaw@earthlink.net e-mail: thelaw@ldrlawus.com This message is intended only for the use of the individual to which it is addressed and may contain information that is privileged/confidential/and exempt from disclosure under applicable law. Law Office of Larry D. Rosenstein

"M. Hollie Rutkowski" Date: November 30, 2022 4:02:00 PM Subject: Re: Ophthalmology PQME Reply to list Reply to sender Print List: lawnet Sent By: Hollie Rutkowski Reply To Sender Reply To List Search Settings I looked up Ophthalmology in the QME Database and I got this: Qualified Medical Evaluator database - Returned records QME Records as of 11/29/2022 Here are the results of your search (66 records): SPECIALTY: Ophthalmology within 700 Miles of ZIP CODE: 95834 Name Address (click for map) Phone Miles Discipline DAVID A SAMI , MD 4917 GOLDEN FOOTHILL PKWY , EL DORADO HILLS , CA   95762 888-455-1600 24.4 THOMAS D TYLER , MD 5250 CLAREMONT AVE , STOCKTON , CA   95207-5700 855-855-0525 45.4 PHILIP A EDINGTON , MD 1899 W MARCH LN , STOCKTON , CA   95207-6402 209-623-4709 45.4 THOMAS D TYLER , MD 5179 LONE TREE WAY , ANTIOCH , CA   94531 855-855-0525 47.2 PHILIP A EDINGTON , MD 1144 NORMAN DR STE 102 , MANTECA , CA   95336-5959 209-623-4709 60 ARMIN  VISHTEH , MD 1559 FARMERS LN , SANTA ROSA , CA   95405 909-980-8010 61.7 THOMAS D TYLER , MD 672 W 11TH ST , TRACY , CA   95376 855-855-0525 63.1 DAVID A SAMI , MD 491 30TH ST STE 201 , OAKLAND , CA   94609-3235 888-455-1600 68.4 A. ALAN  WEBER , MD 750 LAS GALLINAS AVE STE 114 , SAN RAFAEL , CA   94903 415-945-9065 69.7 PHILIP A EDINGTON , MD 1208 FLOYD AVE , MODESTO , CA   95350 209-623-4709 73.2 DANIEL C SCHAINHOLZ , MD 4200 CALIFORNIA ST STE 106 , SAN FRANCISCO , CA   94118 415-872-2014 77.6 THOMAS D TYLER , MD 39899 BALENTINE DR STE 200 , NEWARK , CA   94560-5361 855-855-0525 81.1 THOMAS D TYLER , MD 1140 LAUREL ST STE A , SAN CARLOS , CA   94070 855-855-0525 88.7 THOMAS D TYLER , MD 2033 GATEWAY PLACE 5TH FL , SAN JOSE , CA   95110-3709 855-855-0525 92.5 ROBERT E NEGER , MD 2100 FOREST AVE STE 110 , SAN JOSE , CA   95128-1422 408-971-1949 94.3 THOMAS D TYLER , MD 900 E HAMILTON STE 100 , CAMPBELL , CA   95008-0668 855-855-0525 96.9 DAVID B KAYE , MD 1011 W YOSEMITE AVE , MADERA , CA   93637-4556 559-673-6000 139.5 DAVID B KAYE , MD 6767 N FRESNO ST , FRESNO , CA   93710-3739 559-432-1000 156.6 ARMIN  VISHTEH , MD 828 E MAIN ST , VENTURA , CA   93001 888-514-2020 322.8 BERNARD  MONDERER , MD 14624 SHERMAN WAY STE 203 , VAN NUYS , CA   91405 818-786-0710 347.5 DAVID  PAIKAL , MD 16661 VENTURA BLVD STE 522 , ENCINO , CA   91436-1976 800-458-1261 349.2 DAVID A SAMI , MD 16542 VENTURA BLVD STE 120 , ENCINO , CA   91436 888-455-1600 349.2 IRINA B GANELIS , MD 16661 VENTURA BLVD STE 523 , ENCINO , CA   91436 818-394-0003 349.2 ARMIN  VISHTEH , MD 814 N HOLLYWOOD WAY , BURBANK , CA   91505 818-391-1058 351.6 MARTA A RECASENS , MD 1111 NORTH BRAND BLVD STE 320 , GLENDALE , CA   91202 818-552-2140 354 JOHN D HOFBAUER , MD 416 N BEDFORD DR STE 300 , BEVERLY HILLS , CA   90210-4309 310-273-2333 354.5 DAVID B LAZAR , MD 11600 WILSHIRE BLVD STE 522 , LOS ANGELES , CA   90025 866-773-8462 357 ALEXANDER  KNEZEVIC , MD 8635 W 3RD ST STE 360 , LOS ANGELES , CA   90048 310-657-2777 357.2 ALEXANDER  KNEZEVIC , MD 8635 W 3RD ST , LOS ANGELES , CA   90048 855-855-0525 357.2 JONATHAN I MACY , MD 8635 W 3RD ST , LOS ANGELES , CA   90048 855-855-0525 357.2 JONATHAN I MACY , MD 8635 W 3RD ST STE 360W , LOS ANGELES , CA   90048-6149 310-657-2777 357.2 MARTA A RECASENS , MD 7447 N FIGUEROA ST STE 200 , LOS ANGELES , CA   90041 818-552-2140 357.4 DAVID A SAMI , MD 9001 WILSHIRE BLVD STE 306 , BEVERLY HILLS , CA   90211 888-455-1600 357.4 ARMIN  VISHTEH , MD 2222 SANTA MONICA BLVD STE 302 , SANTA MONICA , CA   90404 909-980-8010 357.5 IRINA B GANELIS , MD 145 S FAIRFAX AVE STE 200 , LOS ANGELES , CA   90036 818-394-0003 357.9 ROBERTO  RENDE , MD 231 W VERNON AVE , LOS ANGELES , CA   90037 888-853-7944 363.5 AMY P JAIN , MD 231 W VERNON AVE , LOS ANGELES , CA   90037 888-853-7944 363.5 BOBAN A JOSEPH , MD 231 W VERNON AVE , LOS ANGELES , CA   90037 888-853-7944 363.5 STEVEN  STEINSCHRIBER , MD 231 W VERNON AVE , LOS ANGELES , CA   90037 888-853-7944 363.5 MALVIN D ANDERS , MD 1235 BUENA VISTA ST , DUARTE , CA   91010 888-888-0098 363.6 IRINA B GANELIS , MD 6080 CENTER DR 6TH FL , LOS ANGELES , CA   90045 818-394-0003 363.8 BOBAN A JOSEPH , MD 11401 VALLEY BLVD STE 103 , EL MONTE , CA   91731 888-853-7944 365.7 STEVEN  STEINSCHRIBER , MD 11401 VALLEY BLVD STE 103 , EL MONTE , CA   91731 888-853-7944 365.7 ROBERTO  RENDE , MD 11401 VALLEY BLVD STE 103 , EL MONTE , CA   91731 888-853-7944 365.7 AMY P JAIN , MD 11401 VALLEY BLVD STE 103 , EL MONTE , CA   91731 888-853-7944 365.7 ROBERTO  RENDE , MD 5801 SOUTH FIGUEROA ST , LOS ANGELES , CA   90003 888-853-7944 366.2 ARMIN  VISHTEH , MD 741 S ORANGE AVE , WEST COVINA , CA   91790-2662 909-980-8010 368.8 AMY P JAIN , MD 1890 N GAREY AVE STE D , POMONA , CA   91767 888-853-7944 373.6 ROBERTO  RENDE , MD 1890 N GAREY AVE STE D , POMONA , CA   91767 888-853-7944 373.6 STEVEN  STEINSCHRIBER , MD 1890 N GAREY AVE STE D , POMONA , CA   91767 888-853-7944 373.6 BOBAN A JOSEPH , MD 160 E ARTESIA ST STE 345 , POMONA , CA   91767 888-853-7944 373.6 DAVID A SAMI , MD 820 N MOUNTAIN AVE STE 102 , UPLAND , CA   91786-4163 888-455-1600 374.4 ARMIN  VISHTEH , MD 8241 ROCHESTER AVE STE 120 , RANCHO CUCAMONGA , CA   91730-0713 909-980-8010 377 BOBAN A JOSEPH , MD 3377 N LONG BEACH BLVD , LONG BEACH , CA   90806 888-853-7944 378.3 STEVEN  STEINSCHRIBER , MD 3377 N LONG BEACH BLVD , LONG BEACH , CA   90806 888-853-7944 378.3 ROBERTO  RENDE , MD 3377 N LONG BEACH BLVD , LONG BEACH , CA   90806 888-853-7944 378.3 AMY P JAIN , MD 3377 NORTH LONG BEACH BLVD , LONG BEACH , CA   90806 888-853-7944 378.3 AMY P JAIN , MD 1314 SOUTH EUCLID AVE STE 203 , ANAHEIM , CA   92802 888-853-7944 384.6 ROBERTO  RENDE , MD 1314 S EUCLID STE 203 , ANAHEIM , CA   92802 888-853-7944 384.6 BOBAN A JOSEPH , MD 1314 S EUCLID STE 203 , ANAHEIM , CA   92802 888-853-7944 384.6 STEVEN  STEINSCHRIBER , MD 1314 S EUCLID STE 203 , ANAHEIM , CA   92802 888-853-7944 384.6 ROBERTO  RENDE , MD 577 NORTH D ST STE 117 , SAN BERNARDINO , CA   92410 888-853-7944 385.3 DAVID A SAMI , MD 392 S GLASSELL STE 100 , ORANGE , CA   92866-1920 888-455-1600 388.1 MICHAEL A SHEETY , MD 2010 EAST 1ST ST STE 160 , SANTA ANA , CA   92705-4080 714-647-1200 391.4 JOHN E BOKOSKY , MD 3939 3RD AVE , SAN DIEGO , CA   92103-3002 800-765-2737 468.2 LOGAN M HAAK , MD 1855 1ST AVE STE 200B , SAN DIEGO , CA   92101 858-863-7597 469.4 Hollie Rutkowski, RN, JD, MBA, Esq. The Compensation Law Center Sacramento, CA   95834 T:916.974.0424 F:916.974.0428 From: "Matthew Verduzco, lawnet listserver" <listsender-lawnet@lawnet.caaa.org> To: "Statewide List Service" <lawnet@lawnet.caaa.org> Sent: Tuesday, November 29, 2022 7:59:23 PM Subject: Re: [lawnet] Ophthalmology PQME List: lawnet Sent By: Roxana Soltani Reply To Sender Reply To List Search Settings I have a client who sustained a severe cornea injury due to a welding accident. The QME database has a list of ophthalmology PQMEs. However, the ophthalmology specialty has disappeared from the list of PQME specialties to request from Medical Unit. Only optometry is listed as non-medical specialty. Has anyone come across this quagmire? Any suggestions? Thanks, Roxana Soltani Law Firm of Rowen, Gurvey & Win

November 08, 2022 7:38:00 PM Subject: Re: Eye QME- SO CAL- Steinschriber or Lazar Reply to list Reply to sender Print List: lawnet Sent By: Shepard Jacobson Reply To Sender Reply To List Search Settings I ended up with Steven Steinschriber, M.D. on a case of mine - AOE / COE (disputed) specific injury with a bacterial infection leading to vision loss.  Dr. Steinschriber wrote a very comprehensive report, reviewed all records, and provided a well supported determination of causation, but applied a strict interpretation of the AMA Guides for vision loss of one eye.  Not sure if the doctor can be persuaded about applying Almaraz Guzman principles as I am just now completing the trial on injury AOE / COE only. Shepard A. Jacobson, Esq. Certified Specialist Workers' Compensation Law The State Bar of California Board of Legal Specialization THE JACOBSON LAW FIRM Dedicated to Serving Injured Workers in California & Immigrants From All Over the World 10401 Venice Boulevard, Suite 204 Los Angeles, CA 90034 (888) 277-7764 Toll Free (310) 277-2266 Local Phone (310) 277-3366 Phone & Fax

Joe Kritzer Workers' Comp Specialist LAW OFFICE OF JOSEPH A. K RITZER 2790 Skypark Drive, Suite #100 Torrance, CA 90505 Phone: 310-373-6821 e-mail: jkritzer@msn.com

Jack Goodchild Date: October 24, 2017 1:05:00 PM Subject: Re: Weird email from WCAB re case on Recon Reply to list Reply to sender Print List: lawnet Sent By: Jack Goodchild Reply To Sender Reply To List Search Settings It happens when a difficult or controversial issue arises which causes delay in resolution. I had one held up for over two years, had a conference set and the commissioner ( Marilyn Lazar at that time said at the conference can't you guys settle this thing?) Jack Goodchild, Attorney at Law, Certified Specialist in Workers' Compensation by Board of Legal Specialization of the State Bar of California, President and Senior Attorney,Goodchild and Duffy, PLC, ,Suite 1250, 16133 Ventura Blvd, Encino, California 91436, tel no: 818-380-1600 -----Original Message----- From: Scott Rubel (lawnet listserver) <listsender@lawnet.caaa.org> To: Statewide List Service <lawnet@lawnet.caaa.org> Sent: Mon, Oct 23, 2017 5:06 pm Subject: [lawnet] Weird email from WCAB re case on Recon List: lawnet Sent By: Scott Rubel Reply To Sender Reply To List Search Settings Just got a weird email. I have a case up on Recon. Judge David Hettick sends me and def atty an email saying he wants to have a "telephone commissioners' settlement conference". Anyone ever have that happen? Any idea what to expect? Any advice would be appreciated. I don't need a bunch of speculation. If you don't know then that's ok. I will report back after the conference but if anyone has any experience with these things I would appreciate any information. Also, any insight on Judge Hettick would be helpful. What Board is he at? Is he at the WCAB? What is his history? How best to approach him? Thank you all, my friends.

Frank Rankin Date: April 21, 2014 3:07:00 PM Subject: Re: Sanford Lazar, Dennis Sullivan offered as AME's Reply to list Reply to sender Print List: lawnet Sent by: Frank Rankin Search I've used Sanford Lazar in the past, and I liked him. He was pretty old then, 7 years ago. And I think he may be deceased. Unfamiliar with Sullivan. Frank Rankin, Sacramento -----Original Message----- From: mjb.injuredworkers@yahoo.com Sent: April 21, 2014 2:51:08 PM To: lawnet@lists.trialsmith.com Subject: Sanford Lazar, Dennis Sullivan offered as AME's SCIF has offered these doctors as AME for multiple accepted ortho injuries.  I have no experience with either although I thought Sullivan was a hand specialist.  These injuries include cervical spine and shoulder both of which required surgery. Thanks. Marty Beaver

edith levy Date: June 10, 2009 11:56:00 AM Subject: Internal QME Panel: Barry Gwartz, Lazaro Alonso, and Thomas Hascall Reply to list Reply to sender Print Hi.   Does anyone know anything about these internists:   Barry Gwartz, Lazar Alonso, and Thomas Hascall.  Any help greatly appreciated.  Edie Levy

"Michael C. Grimes" Date: January 24, 2007 6:51:00 PM Subject: RE: Dr. Nicole Chitnis--Norcal Reply to list Reply to sender Print Was with Feinberg for awhile and worked mostly in Salinas area before that I understand. Michael C. Grimes LAW OFFICES OF MICHAEL C. GRIMES 795 4th Ave., Suite 207 Redwood City, CA  94063-3936 650-261-1754 mgrimes@sbcglobal.net IMPORTANT: THIS ELECTRONIC MAIL MESSAGE, INCLUDING ANY ATTACHED FILES, IS BEING SENT BY OR ON BEHALF OF A LAWYER; IT IS CONFIDENTIAL AND IT MAY CONTAIN OR CONSTITUTE INFORMATION PROTECTED BY THE ATTORNEY-CLIENT AND/OR THE ATTORNEY WORK-PRODUCT PRIVILEGES.  IF THE PERSON ACTUALLY RECEIVING THIS MESSAGE, OR ANY OTHER READER OF THIS MESSAGE, IS NOT THE NAMED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE NAMED RECIPIENT, YOU ARE NOT AUTHORIZED TO RETAIN, READ, COPY OR DISSEMINATE THIS COMMUNICATION OR ANY PART OF IT.  IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE LAW OFFICES OF MICHAEL C. GRIMES AT (650) 261-1754.  THANK YOU. -----Original Message----- From: Jim Lazar [mailto:lazar@inreach.com] Sent: Wednesday, January 24, 2007 6:13 PM To: Statewide List Service Subject: Dr. Nicole Chitnis--Norcal Dr. Newton, our AME has suggested that his associate Dr. Nicole Chitnis provide a re-eval to address future medical needs, as he is scheduling over a year out for appointments.  Has anyone dealt with this doc? Jim Lazar lazar@inreach.com Auburn --- You are currently subscribed to lawnet as: mgrimes@sbcglobal.net. To unsubscribe click here: http://lawnet.caaa.org/u?id82X&n=l=wnet or send a blank email to leave-lawnet-1582X@lawnet.caaa.org

"Jim Vandersloot" Date: October 09, 2006 8:51:00 PM Subject: RE: Subsequent AME opinion Reply to list Reply to sender Print 70 ccc 897 (writ denied) -----Original Message----- From: Maurice Abarr [mailto:abarr1@earthlink.net] Sent: Monday, October 09, 2006 2:07 PM To: Statewide List Service Subject: RE: Subsequent AME opinion What is the cite for the UC Regents case? Maurice L. Abarr  -- Lawyer Practice Limited to Injury Cases (714) 541-9000 (800) 64 INJURY ORANGE COUNTY abarr@earthlink.net www.california-work-injury.com CONSUMER BEWARE:  Until you have retained this office, no attorney-client relationship exists between Maurice L. Abarr and yourself.  Therefore anything that is stated in an email to you (irrespective of who initiated that email) cannot be relied upon as a legal advice upon which you should act.  If you have contacted this office regarding a civil claim, be on NOTICE that every civil claim has certain time restrictions applicable to it and if you do not act within that time frame your right to proceed may be lost forever . From: Lou Ann Bassan [mailto:bassanlaw@dslextreme.com] Sent: Monday, October 09, 2006 1:16 PM To: Statewide List Service Subject: Re: Subsequent AME opinion AME trumps UR (UC Regents v Rewald) so IMHO, once AME is on case, all future issues go directly to AME IMHO defatty did right thing by writing to AME; you should followup to get his supp report prior to your Exp Hrg If you don't like his opinion set depo Lou Ann At 08:49 AM 10/9/2006, Jim Lazar wrote: AME report was issued several months ago, with a provision for conservative future med care. Case has not yet settled, and IWs PTP is recommending computerized lumbar traction. Def failed to provide a UR on the treatment request and an EH is set for this Friday. Without my consent Defatty has sent letter to AME requesting his opinion on this treatment issue, representing that this was a joint request. Aside from Defattys ethical violations, can the AME render an opinion over my objection on this treatment issue? It seems that without a UR denial, this should be a slam dunk. A letter is going to the AME this a.m. advising him of my objection and requesting that he not prepare a report. Jim Lazar Auburn --- You are currently subscribed to lawnet as: bassanlaw@dslextreme.com. To unsubscribe click here: http://lawnet.caaa.org/u?id291S&nlwnet or send a blank email to leave-lawnet-1595N@lawnet.caaa.org --- You are currently subscribed to lawnet as: abarr1@earthlink.net . To unsubscribe click here: http://lawnet.caaa.org/u?id=3B&n=T&l=lawnet or send a blank email to leave-lawnet-1595N@lawnet.caaa.org --- You are currently subscribed to lawnet as: jevandersloot@lvrlaw.com. To unsubscribe click here: http://lawnet.caaa.org/u?id95N&n=l=wnet or send a blank email to leave-lawnet-1595N@lawnet.caaa.org Lou Ann Bassan Law Office of Lou Ann Bassan 685 Market Street, Suite 460 San Francisco, CA  94105 415.284.5024 fax: 415.284.0484 email: bassanlaw@dslextreme.com

"Maurice Abarr" Date: October 09, 2006 2:05:00 PM Subject: RE: Subsequent AME opinion Reply to list Reply to sender Print What is the cite for the UC Regents case? Maurice L. Abarr  -- Lawyer Practice Limited to Injury Cases (714) 541-9000 (800) 64 INJURY ORANGE COUNTY abarr@earthlink.net www.california-work-injury.com CONSUMER BEWARE:  Until you have retained this office, no attorney-client relationship exists between Maurice L. Abarr and yourself.  Therefore anything that is stated in an email to you (irrespective of who initiated that email) cannot be relied upon as a legal advice upon which you should act.  If you have contacted this office regarding a civil claim, be on NOTICE that every civil claim has certain time restrictions applicable to it and if you do not act within that time frame your right to proceed may be lost forever . From: Lou Ann Bassan [mailto:bassanlaw@dslextreme.com] Sent: Monday, October 09, 2006 1:16 PM To: Statewide List Service Subject: Re: Subsequent AME opinion AME trumps UR (UC Regents v Rewald) so IMHO, once AME is on case, all future issues go directly to AME IMHO defatty did right thing by writing to AME; you should followup to get his supp report prior to your Exp Hrg If you don't like his opinion set depo Lou Ann At 08:49 AM 10/9/2006, Jim Lazar wrote: AME report was issued several months ago, with a provision for conservative future med care. Case has not yet settled, and IWs PTP is recommending computerized lumbar traction. Def failed to provide a UR on the treatment request and an EH is set for this Friday. Without my consent Defatty has sent letter to AME requesting his opinion on this treatment issue, representing that this was a joint request. Aside from Defattys ethical violations, can the AME render an opinion over my objection on this treatment issue? It seems that without a UR denial, this should be a slam dunk. A letter is going to the AME this a.m. advising him of my objection and requesting that he not prepare a report. Jim Lazar Auburn --- You are currently subscribed to lawnet as: bassanlaw@dslextreme.com. To unsubscribe click here: http://lawnet.caaa.org/u?id291S&nlwnet or send a blank email to leave-lawnet-3B@lawnet.caaa.org --- You are currently subscribed to lawnet as: abarr1@earthlink.net . To unsubscribe click here: http://lawnet.caaa.org/u?id=3B&n=T&l=lawnet or send a blank email to leave-lawnet-3B@lawnet.caaa.org Lou Ann Bassan Law Office of Lou Ann Bassan 685 Market Street, Suite 460 San Francisco, CA  94105 415.284.5024 fax: 415.284.0484 email: bassanlaw@dslextreme.com

"Yalda Yousefi" Date: February 11, 2025 2:18:00 PM Subject: Ophthalmology panel help Reply to list Reply to sender Print List: scaaa Sent By: Yalda Yousefi Reply To Sender Reply To List Search Settings Hello, Any info on the following? David Lazar Alexanderr Knezevic Amy P. Jain Thank you,

"Alan B Snitzer" Date: January 03, 2024 6:46:00 PM Subject: Re: So Cal Opthamology Panel Reply to list Reply to sender Print Hi, Laila, I believe Lazar is now repped by Nadine Cain; you could reach out to her for more info if needed. Best, Alan LAW OFFICES OF ALAN B. SNITZER A PROFESSIONAL CORPORATION ​ 80 S. Lake Ave., Suite 800 Pasadena, California 91101-2585 T: 626-449-4300 F: 626-449-0830 Certified Specialist, Workers' Compensation Law Board of Legal Specialization, The State Bar of California Included in SUPER LAWYERS Southern California Edition 2015-2023 1998-2023

"Dayna Berkowitz" Date: November 27, 2023 7:40:00 PM Subject: Re: QME panel all LA Drs Reply to list Reply to sender Print List: lawnet Sent By: Dayna Berkowitz Reply To Sender Reply To List Search Settings Steinschriber did not find any opthamalogic problems related to my client's long haul COVID even though she claims her eyesight worsened after same. Granted, it was unique circumstances but he still did not find AOE/COE. Last I heard though (which was earlier this year), he was out on medical leave so you might want to call his office and confirm whether he has returned. On 11/27/2023 5:30 PM PST Larry D. Rosenstein (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> wrote: List: lawnet Sent By: Larry D. Rosenstein Reply To Sender Reply To List Search Settings Lazara's rep by nadine cain .  I would stay away from Hofbauer. I don't know the third doctor. From, Larry D. Rosenstein Law Offices of Larry D. Rosenstein 325 N Larchmont Blvd. # 620 Los Angeles, CA 90004 Tel. (310) 478-5445 Fax (310) 478-7175 e-mail: ldrlaw@earthlink.net e-mail: thelaw@ldrlawus.com This message is intended only for the use of the individual to which it is addressed and may contain information that is privileged/confidential/and exempt from disclosure under applicable law. Law Office of Larry D. Rosenstein On Nov 27, 2023, at 5:28 PM, Karen Steinitz (lawnet listserver) <listsender-lawnet@lawnet.caaa.org> wrote: List: lawnet Sent By: Karen Steinitz Reply To Sender Reply To List Search Settings Hello , Rec’d this OPHTHALMOLOGY panel all LA drs. John Hofbauer, MD David Lazar MD Steven Steinschriber MD Please advise whom to strike….I don’t know any of them. Karen Steinitz San Mateo Dayna L. Berkowitz Associate Berkowitz & Cohen, A Professional Corporation 6420 Wilshire Boulevard Suite 1240 Los Angeles, CA 90048 T: (323) 651-5151 F: (323) 651-1205 dayna@berkowitz-cohen.com CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the exclusive use of the intended recipient(s) and may contain information that is confidential, proprietary, and/or legally privileged. Any unauthorized review, use, disclosure, distribution or copying of this message and its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by reply e-mail and destroy all copies of this message and its attachments whether in electronic or hard copy format.

"M. Hollie Rutkowski" Date: April 21, 2014 2:58:00 PM Subject: RE: Sanford Lazar, Dennis Sullivan offered as AME's Reply to list Reply to sender Print List: lawnet Sent by: Hollie Rutkowski Search I have never heard of either of them. M. Hollie Rutkowski, RN, JD, MBA, Esq. The Compensation Law Center Sacramento , CA   95834 T:916.974.0424 F:916.974.0428 From: Martin Beaver [mailto:mjb.injuredworkers@yahoo.com] Sent: Monday, April 21, 2014 12:51 PM To: Statewide List Service Subject: [lawnet] Sanford Lazar, Dennis Sullivan offered as AME's List: lawnet Sent by: Martin J. Beaver Search SCIF has offered these doctors as AME for multiple accepted ortho injuries.  I have no experience with either although I thought Sullivan was a hand specialist.  These injuries include cervical spine and shoulder both of which required surgery. Thanks. Marty Beaver _.___.__

Martin Beaver Date: April 21, 2014 2:51:00 PM Subject: Sanford Lazar, Dennis Sullivan offered as AME's Reply to list Reply to sender Print List: lawnet Sent by: Martin J. Beaver Search SCIF has offered these doctors as AME for multiple accepted ortho injuries.  I have no experience with either although I thought Sullivan was a hand specialist.  These injuries include cervical spine and shoulder both of which required surgery. Thanks. Marty Beaver

there is a dearth of this specialty and half are horrible. does he do sibtf juan? -- Kenneth D. Martinson-Gomez Abogado Gomez 851 Cherry Ave Ste 27 100 San Bruno, CA  94066 (408) 375 - 8135

I could not tell from his report.  The issue was very unique and I don't want to mislead you by saying conservative or liberal by this one report.  I wish I could be more helpful. Art Arthur Csillag acsillaglaw@gmail.com 2410 W. Magnolia Blvd. / Burbank, CA  91506 O  (818) 558-7225  /  Cell (818) 219-4264 / Fx  (818) 558-7151 Law Office of Arthur Csillag