In J.C. Penney Co. v. Workers' Comp. Appeals Bd. (2009) 175 Cal.App.4th 818, the employee (Edwards) suffered chronic pain in his elbow, back, and right knee and leg after a 2003 fall at work. He had knee surgery in 2005 and was referred for back fusion surgery. However, the initial authorization for the back surgery was denied. (J.C. Penney Co., supra, 175 Cal.App.4th at p. 821.) He sought a second opinion which recommended against the fusion surgery. Thereafter, his treating doctor, Dr. Kimble, recommended an evaluation for an implanted pump to deliver pain medication to Edwards's spinal cord. in May 2006, Dr. Kimble opined that Edwards remained temporarily totally disabled through June 2006. Pursuant to the parties' agreement, in February 2007, Edwards was examined by Dr. Mandell who opined that Edwards's condition was permanent and stationary and " 'probably' " became so six months after his February 2005 knee surgery. Edwards received temporary disability indemnity payments through mid-March 2007. (Id. at p. 822.) Edwards's employer contended that Edwards's condition became permanent and stationary in August 2005 and sought credit against Edwards's permanent disability indemnity award. (J.C. Penney Co., supra, 175 Cal.App.4th at pp. 821, 823.) The WCAB ALJ's decision found that Edwards's condition became permanent and stationary the day he was examined by Dr. Mandell, and that Edwards's employer had failed to object under Labor Code section 4062 to the ongoing determinations of Edwards's treating doctors that he remained temporarily totally disabled. After the WCAB affirmed its award and order, the employer sought writ review. (Id. at p. 821.) The Court of Appeal stated: "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 Co., supra, 175 Cal.App.4th at pp. 824-825.) Of particular interest here is the footnote following this quote: "J.C. Penney's argument 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." (Id. at p. 825, fn. 4)