ADJ10311023 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; matter referred to WCJ at Appeals Board for status conference; final decision after reconsideration deferred.

Applicant sought reconsideration of the Findings and Order and Award issued by a WCJ on July 10, 2023, which found applicant sustained multiple injuries and awarded 61% permanent disability after apportionment; the WCJ recommended denial of reconsideration; the Appeals Board granted reconsideration and ordered a status conference before the WCJ at the Appeals Board, deferring final decision on the merits.

Read the official decision →

What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Reconsideration / removalRemanded

The Appeals Board found preliminary grounds to grant reconsideration and ordered further proceedings before the WCJ to develop the record and address issues raised by the applicant's petition.

From the decision · page 2Based upon our preliminary review of the record, we will grant applicant's Petition for Reconsideration, and pursuant to Labor Code section 5310, we will order that this matter be referred to the WCJ at the Appeals Board for a status conference.

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal. App. 4th 1262

The scheduled rating is prima facie evidence of an employee's level of permanent disability resulting from an injury, but may be challenged by showing non-amenability to rehabilitation (Ogilvie v. WCAB (2011)).

The Board noted the need for an individualized approach to determine amenability to vocational rehabilitation, excluding nonindustrial factors.

From the decision · page 2The scheduled rating is prima facie evidence of an employee's level of permanent disability resulting from an injury. (Lab. Code, § 4660.1(d).) However, an employee may challenge the scheduled percentage of permanent disability "by demonstrating that due to industrial injury the employee is not amenable to rehabilitation." (Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal. App. 4th 1262, 1277 [129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624].)

McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

The Appeals Board has discretionary authority to further develop the record when there is insufficient evidence to determine an issue submitted for decision (McClune v. WCAB (1998)).

The Board ordered further development of the record due to unclear substantial evidence supporting the WCJ decision.

From the decision · page 4further develop the record where there is insufficient evidence to determine an issue that was submitted for decision. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) Normally, when the medical record requires further development, the record should first be supplemented by physicians who have already reported in the case. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Bd. en banc).) Here, it is unclear from our preliminary review whether the medical and vocational reporting in this case is substantial evidence to support the decision, and whether further development of the record may be necessary.

ADJ10311023 · October 2, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

Your case already resembles someone else’s. Find whose.

The rules the panel named

About this page