What the panel ordered
The April 13, 2021 Findings and Award is rescinded and substituted. The matter is remanded to the trial level for further proceedings to develop the record on occupational group classification and permanent disability rating.
Applicant seeks reconsideration of the April 13, 2021 Findings and Award (F&A) regarding occupational group classification and permanent disability rating.
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.
There is insufficient evidence to determine the correct occupational group number; the matter is remanded for further development of the record to ensure due process and accurate permanent disability rating.
From the decision · page 31257.) An employee may also be entitled to a higher occupational group number if the activity (or activities) which generates the higher occupational group is an integral part of the occupation. (National Kinney v. Workers' Comp. Appeals Bd. (Casillas) (1980) 113 Cal.App.3d 203, 215-216 [45 Cal.Comp.Cases 1266].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Insufficient evidence in the record to determine whether occupational group 341 or 460 is accurate for applicant's job duties.
Favours neutral
This lack of evidence prevents a proper permanent disability rating and requires remand for further development of the record.
From the decision · page 3Applicant now argues that occupational group 4601 is the most accurate reflection of his duties and alleges that the WCJ misstated his testimony at trial. (Petition, p. 6.) Applicant argues that his lifting of "bed frames, dressers, mattresses, couches, televisions and chairs" was not "limited to 50 pounds." (Petition, p. 6.) As such, the WCJ's finding of occupational group 341 is not an accurate reflection of applicant's job duties given applicant's heavy lifting requirements. Based upon the current record, however, there is insufficient evidence to determine whether applicant's occupational group number should be 341 or 460.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Found permanent disability and opined no injury to right shoulder, right knee, or bilateral feet.
From the decision · page 2Joseph Matan, M.D., dated November 22, 2019, pp. 12-13.) The matter proceeded to trial and among the issues litigated at trial was Applicant's occupational code.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
Permanent disability rating must be based on admitted evidence and supported by substantial evidence to ensure due process.
Decision must be based on admitted evidence and supported by substantial evidence to allow meaningful reconsideration and due process.
From the decision · page 3As explained in Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 [33 Cal.Comp.Cases 350-351], a decision "must be based on admitted evidence in the record" (Id. at p. 478) and must be supported by substantial evidence. (§ 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) Aside from providing assurance that due process is being provided, this "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton, supra, at 476, citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about lifting heavy items was found insufficiently supported by evidence to establish occupational group 460 as integral to his job duties.
From the decision · page 2The WCJ ultimately placed applicant in occupational group 341 as the WCJ believed the "custodial requirements" of applicant's job were best assessed under this group. (F&A, p. 10.) The WCJ did not find applicant's argument for use of occupational group 560 persuasive as "applicant testified that the maximum weight lifted was fifty pounds" and applicant "sought assistance" for any lifting over this amount. (F&A, p. 9.) The WCJ also did not find heavy lifting to be an "integral" part of applicant's duties based upon the evidence submitted. (Ibid.) With respect to defendant's arguments, the WCJ did not believe occupational group 213 took into consideration the lifting requirements of up to 35 pounds evidenced by defendant's own exhibits. (Ibid.) Ultimately, the WCJ found occupational group 341 to be the best reflection of applicant's lifting and custodial requirements. (F&A, p. 10.)
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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