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Stephen Hart v. Workers' Compensation Appeals Board and Chief Auto Parts Auto

August 8, 2012

STEPHEN HART, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND CHIEF AUTO PARTS AUTO ZONE, RESPONDENTS.



The opinion of the court was delivered by: Blease , Acting P. J.

Hart v. WCAB

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Applicant Stephen Hart injured his right shoulder in the course of employment, which later led to an overcompensation injury to his left shoulder. The workers' compensation judge (WCJ) denied applicant's claim for temporary total disability benefits from February 11, 2011, and continuing. Applicant does not directly challenge the WCJ's finding that his shoulder injuries were permanent and stationary by that time, which would preclude further temporary disability if there were no other consequential injuries. He claims the WCJ erred by failing to consider whether applicant was temporarily disabled based on cervical (neck) problems resulting from the previously identified injuries.

The Workers' Compensation Appeals Board (WCAB) denied applicant's petition for reconsideration of the WCJ's decision. Upon timely petition to this court, we issued a writ of review. As we shall explain, we agree with applicant that the WCJ erred by concluding that an earlier decision precluded him from considering applicant's cervical problems. We shall remand the matter to the WCAB to reconsider applicant's temporary total disability claim.

BACKGROUND

Applicant sustained the original shoulder injury in the course of employment in 1999. His claim was initially resolved and an award was entered; however, he later filed a timely petition to reopen in 2004. Applicant broadly alleged that his condition had worsened in terms of both functionality and pain level.

In August 2009, the parties entered a stipulation concerning applicant's entitlement to temporary total disability from 2004 forward. It was noted that temporary total disability was "ongoing." The stipulation did not refer to the specific parts of applicant's body that were affected.

1. 2009 Decision

Of importance to the WCJ's decision in the current matter was an earlier decision in December 2009 (the 2009 decision). By the time of the 2009 decision, applicant had undergone three operations on his right shoulder and had favored his left side, resulting in a further consequential or overcompensation injury to the left shoulder. Authorization for surgery on his left shoulder had been denied by the employer and its insurer (the employer). In the 2009 decision, the WCJ concluded, based on evidence of the overcompensation injury, that the surgery had been erroneously denied. The 2009 award specified that applicant was entitled to "[a]ll further medical treatment reasonably required to cure or relieve from the effects of injury herein, including, but not limited to, surgery on his left shoulder."

Applicant's entitlement to temporary disability was not at issue at the time of the 2009 decision. The parties stipulated that applicant's injuries had resulted in ongoing temporary total disability from at least August 2009, to the present and continuing.

2. Current Decision

The controlling issue at the time of the current decision (which was rendered in 2011) was applicant's continued entitlement to temporary total disability. The parties stipulated to applicant's receipt of temporary total disability through February 10, 2011, but the employer objected to further benefits. Applicant asked the WCJ to award further temporary disability from February 11, 2011, through the present and continuing. The following summary provides a brief overview of pertinent evidence submitted in the current matter. A more comprehensive ...


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