Your ever-researching blogger recently came across an opinion in which the weight of an applicant’s testimony and a treating physician were pitted against the opinions of a Qualified Medical Evaluator.

Amalia Anaya was awarded 73% permanent disability following a 1997 injury to various body parts while employed by the City of South Gate.  Applicant filed a timely petition to reopen for new and further disability, but after years of litigation and several evaluations, a qualified medical evaluator found applicant to have sustained no new and further disability, to be again permanent and stationary, and to, quiet possibly, have improved since her 2000 award.

Applicant testified that she had in fact sustained new and further disability, and her treating physician (who apparently thought himself a vocational rehabilitation expert) gave the opinion that Ms. Anaya was not trainable to perform other work and could not perform the work previously done because of her injury.

The Workers’ Compensation Judge relied on the QME’s opinions in denying applicant an award of any further disability (applicant had claimed she was now permanently and totally disabled).

In reviewing the decision after applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board held that “applicant has the burden of proving new and further permanent disability, but her testimony is insufficient to meet that burden.”  Moreover, a treating physician’s conclusions regarding the prospects of training and employability are not substantial evidence – one must retain a vocational rehabilitation expert for such evidence.

Although the WCJ did award some temporary disability, the WCAB denied applicant’s attorney’s request that the attorney’s fee be paid out of the TD.

This is not a groundbreaking decision by any means, but it does provide some foundation for fighting claims of PTD, which can be disastrous for various reasons.  A lifetime supply of temporary disability payments, an attorney’s fee paid up front based on a universal life-expectancy chart, and, as always, those drops of blood in the water that send the rest of the sharks into a frenzy.

WCDefenseCA sends hearty congratulations to the City of South Gate for this victory.