ADJ10714339 — California WCAB decision

What the panel ordered

December 15, 2021 Findings and Award rescinded; matter returned to trial level for further proceedings and record development.

Petition for reconsideration of the WCJ's December 15, 2021 Findings and Award; WCJ found 90% permanent partial disability instead of 100% permanent total disability; WCAB rescinded the F&A and remanded for further development of the record.

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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.

Permanent disability ratingRemandedright thumb · right upper extremity · left hand

The WCAB found the vocational expert's opinion was not substantial evidence because it improperly included medical opinions about the left hand, which is a medical issue requiring medical evidence. The Board rescinded the WCJ's award and remanded for further development of the medical record.

From the decision · page 6In this case, applicant's vocational expert's report does not constitute substantial evidence as the evaluator has incorrectly and improperly interjected his own medical opinions into the case regarding applicant's ability to use his left hand. A vocational evaluator does not create medical facts in a case. Vocational experts review the medical record created by the doctors and reach conclusions as to applicant's vocational feasibility based upon that record. Applicant's physical restrictions with the left hand is a medical issue, which requires medical evidence. If the vocational expert has cause to disagree with the work restrictions assigned, the parties must return to the medical experts to clarify applicant's ability to use the left hand.

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning in support of conclusions.

Applied to evaluate the sufficiency of medical and vocational evidence on permanent disability.

From the decision · page 5To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "When the foundation of an expert's testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions." (People v. Bassett (1968) 69 Cal.2d 122, 139.)

Nunes v. State of California, Dept. of Motor Vehicles (June 22, 2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] and (August 29, 2023) 23 Cal. Wrk. Comp. LEXIS 46 [88 Cal.Comp.Cases 894]

Labor Code section 4663 requires a reporting physician to make medical determinations including apportionment; vocational evidence may address permanent disability but not medical issues.

Clarified roles of medical and vocational evaluators in permanent disability and apportionment determinations.

From the decision · page 5In the en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (June 22, 2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] ("Nunes I"), the Appeals Board held that Labor Code section 4663 requires a reporting physician to make medical determinations in a case, including determinations on the issue of apportionment. The Board further held that vocational evidence may be used to address issues relevant to the determination of permanent

ADJ10714339 · November 5, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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The rules the panel named

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