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IW Failed To Carry Burden on TD Even After Second Bite at the Apple

Happy Monday, dear readers!

Your humble blogger brings you a recent panel decision on the subject of temporary disability and the burden of proof.  Applicants will often make the argument that if defendant cannot show wages between the date of injury and the P&S date, then applicant is entitled to temporary disability benefits.  However, this isn’t always the case.

In the matter of Singh v. N. Kern State Prison, applicant asserted she was entitled to temporary disability benefits from the date of injury to her P&S date.  However, defendant contended that there was insufficient evidence to support a finding of disability, despite there being no wages, relying on Labor Code section 5705 (“[t]he burden of proof rests upon the party or lien claimant holding the affirmative of the issue…”)

Over the five reports issued by the AME in this case, there is no definitive discussion of temporary disability, nor the periods when applicant would have been temporarily disabled.  In fact, when the matter was submitted for trial the first time, the WCJ ordered the parties to develop the record and specifically inquire from the AME “what, if any, period of medical temporary disability, total or partial, resulted from the injury.”

Despite having the opportunity to depose the AME, applicant failed to establish the periods and extent of her temporary disability, leading the WCJ to conclude, and the WCAB to concur, that applicant did not carry her burden of proving entitlement to temporary disability benefits.

Now, in this case, there didn’t appear to be any evidence to offer as to temporary disability, and so the WCAB concluded that applicant failed to carry her burden.  How much is enough to carry it though?  What happens when the primary treating physician sends you a work slip that says “TTD until next visit four weeks from today” or something like that?

We’re not talking about a hospitalized injured worker, but someone who, presumably, was able to get to and from the appointment and can probably function fairly independently, but possibly could not perform regular duties.  Is a slip from the treating physician that concludes the injured worker is “TTD” enough?

It seems that, at least in theory, such a report, without more, might not constitute substantial evidence and would be insufficient to carry the applicant’s burden of proof.  However, one could also imagine the applicant, at an expedited hearing, weepily telling the WCJ about the pain and the inability to do ANYTHING, which is why the treating physician opined that the disability was total.

What do you think, dear readers?  How light is this “burden” that falls on applicants?

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