ADJ12941269 · October 9, 2026

The WCAB found the record requires further development on work restrictions and AMA Guides impairment before determining permanent total disability and apportionment; thus, the Amended Findings and Award were rescinded and the case remanded for further proceedings.

From the decision · page 11(1965) 234 Cal.App.2d 831, 838 [30 Cal.Comp.Cases 188].) Lay opinion might find it reasonable that the restrictions to pushing, pulling, and carrying with both hands are a result of applicant’s surgical history of bilateral carpal tunnel and ulnar releases in 1994. (Exhibit 1, at p. 2.) Likewise, lay opinion might find it reasonable that the remaining postural limitations are from applicant’s bilateral knee injury and not the result of applicant’s history of asthma and hypertension. (Ibid.) Such lay opinion, however, is not substantial where “where the truth is occult and can be found only by resorting to the sciences.” (Peter Kiewit Sons, supra, at p. 838.) An expert medical opinion is required to explain both the work restrictions and their specific source. Therefore, it is clear the work restrictions in the FCE are not substantial evidence.

Lack of substantial expert medical opinion explicitly linking work restrictions to the industrial injury.

Favours Defendant prevailed

Without clear expert medical opinion on work restrictions causation, vocational expert opinions are not substantial evidence to rebut the PDRS rating.

Vocational expert opinions lacked substantial evidence due to unclear or missing valid work restrictions.

Favours Defendant prevailed

Vocational expert opinions cannot be substantial evidence without a foundational predicate of substantial expert medical opinion on work restrictions.

From the decision · page 13opinions were issued after the reporting was completed in this matter. Although chiropractor Dhesi’s restrictions may well be appropriate, given the posture of this case we are unable to discern if these restrictions are based solely on the industrial injury or may be based in part on applicant’s chiropractor Desai’s diagnoses of obesity that was pre-existing, longstanding, and improved subsequent to the industrial injury. (Id. at p. 10.) After clarifying causation, the parties may wish to submit chiropractor Dhesi’s work restriction to the VEs for consideration. 2. As discussed above, it is unclear which of applicant’s work restrictions are solely from the industrial injury. Substantial expert medical opinion of industrial work restrictions is a predicate to any meaningful expert vocational opinion in this case. Lacking this foundational predicate, the VE opinions from the beginning cannot be substantial evidence. Expert opinion is not substantial “if it is based on surmise, speculation, conjecture or guess.” (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]. Here, the vocational experts appear to employ a magician’s sleight of hand through verbose writing and misdirection to hide the missing valid work restrictions. (As discussed above, see: Exhibit 28, at pp. 47-56, 80, 82; Exhibit B, at pp.

Found bilateral knee injuries with impairment ratings and work restrictions; deferred work restrictions and recommended functional capacity evaluation; introduced ambiguity into PDRS rating.

His opinions formed the basis of the PDRS rating and work restrictions discussion, but ambiguity in his work restrictions led to remand for further development.

From the decision · page 3As found by the WCJ, applicant, while employed during the period of September 19, 1991 to August 19, 2019 as a delivery specialist, sustained injury arising out of and in the course of employment to the bilateral knees. Panel Qualified Medical Evaluator (PQME) Brian Bernhardt, M.D., first reported in this case on July 6, 2020. (Exhibit 101, PQME Dr. Bernhardt, July 6, 2020.) In a July 2, 2021 re-evaluation report, Dr. Bernhardt found the left knee was not permanent and stationary (P&S), the right knee was P&S, and there were work restrictions of occasional bending at the knees, no squatting, no climbing of ladders and occasional climbing of stairs, and no pushing/pulling >25 pounds. (Exhibit 102, PQME Dr. Bernhardt, July 2, 2020, p. 27.) In his March 4, 2022 re-evaluation report, Dr. Bernhardt states the left knee was now P&S and the right knee remained P&S. (Exhibit 103, PQME Dr. Bernhardt, March 4, 2020, p. 9.) The impairment rating was 4% whole person impairment (WPI) for each knee due to partial medial and lateral meniscectomy surgeries and 8% WPI for each knee for arthritis with 2mm cartilage interval. Work restrictions were deferred and a functional capacity evaluation (FCE) was recommended to “assess and facilitate return to work.” (Id. at pp.

Provided work restrictions and supported a later permanent and stationary date; adopted other physicians' and vocational experts' restrictions but did not provide independent opinion on work restrictions.

His opinions were considered but found insufficiently clear or independent to establish work restrictions, contributing to the need for further development.

From the decision · page 6(Id. at p. 15, lns 1-23.) The doctor then stated applicant can perform work of, “[s]omething that's required sitting but not demand on his lower extremity of any sort.” (Id. at p. 17, lns 1-2.) There is a one page June 21, 2023 Work Restrictions note from Babak Jamasbi, M.D., that provided work restrictions stated as “Permanent and Stationary as per QME.” (Exhibit 11, Babak Jamasbi, M.D., June 21, 2023.) On March 26, 2024, applicant’s VE Evan Oomecke, M. Ed., issued a report which included that “[i]nformation regarding functional limitations, work restrictions, whole person impairment, and apportionment is outlined in the body of the report.” (Exhibit 28, VE Oomecke, March 26, 2024, p. 80.) And that: The opinions of Dr. Bernhardt as the pain management panel qualified medical evaluator, Dr. Bagherian as the functional capacity evaluator, and Dr. Jamasbi as the primary treating physician were considered for this analysis of medical labor market access, placeability, and sustainability.

Labor Code §§ 4660.1, 5903, 5952(d), 3202.5, 5705; Milpitas Unified School Dist. v. WCAB (Guzman) (2010) 187 Cal.App.4th 808

Use of AMA Guides for impairment rating is rebuttable; substantial expert medical opinion is required to establish work restrictions and rebut PDRS rating.

The Board requires substantial expert medical evidence to support work restrictions and impairment ratings, and rejects lay opinion as insufficient.

From the decision · page 9(Lab. Code, § 4660.1(a) and (b), emphasis added.) The use and incorporation of the AMA Guides is acknowledged in the PDRS itself, with exception for claims of psychiatric impairment. (PDRS, p. 1-2; 1-12.) The use of the AMA Guides, however, is rebuttable. (Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 822 [75 Cal.Comp.Cases 837].) Because the AMA Guides’ incorporation into the PDRS is rebuttable, the first step in the assessment of disability, is to determine the impairment for the injured body part(s) under the AMA Guides. This allows a physician to determine if rebuttal of a strict rating AMA Guide impairment is necessary. If the physician finds the straight AMA Guides impairment to be lacking: [t]he physician should be free to acknowledge his or her reliance on standard texts or recent research data as a basis for his or her medical conclusions, and the WCJ

Lack of substantial expert medical opinion explicitly linking work restrictions to industrial injury; FCE work restrictions not substantial evidence.

Vocational expert opinions lacked substantial evidence due to unclear or missing valid work restrictions.

From the decision · page 13opinions were issued after the reporting was completed in this matter. Although chiropractor Dhesi’s restrictions may well be appropriate, given the posture of this case we are unable to discern if these restrictions are based solely on the industrial injury or may be based in part on applicant’s chiropractor Desai’s diagnoses of obesity that was pre-existing, longstanding, and improved subsequent to the industrial injury. (Id. at p. 10.) After clarifying causation, the parties may wish to submit chiropractor Dhesi’s work restriction to the VEs for consideration. 2. As discussed above, it is unclear which of applicant’s work restrictions are solely from the industrial injury. Substantial expert medical opinion of industrial work restrictions is a predicate to any meaningful expert vocational opinion in this case. Lacking this foundational predicate, the VE opinions from the beginning cannot be substantial evidence. Expert opinion is not substantial “if it is based on surmise, speculation, conjecture or guess.” (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]. Here, the vocational experts appear to employ a magician’s sleight of hand through verbose writing and misdirection to hide the missing valid work restrictions. (As discussed above, see: Exhibit 28, at pp. 47-56, 80, 82; Exhibit B, at pp.