ADJ12944113 · September 28, 2026

The WCJ found at least 40% permanent partial disability but deferred determination of permanent total disability pending further medical-legal evaluation in pain management. The Appeals Board granted reconsideration to allow further development of the record and deferred final decision.

From the decision · page 1Applicant and defendant each seek reconsideration of the Findings of Fact & Order 1 issued by the workers’ compensation administrative law judge (WCJ) on May 12, 2026. Therein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his right foot and right ankle and in the form of a Chronic Pain Syndrome but not his hip, while employed as a truck driver on June 21, 2019. The WCJ further found that as a result of the injury herein, applicant sustained “at least 40% permanent partial disability indemnity, after applicable adjustment and apportionment” and that “[f]urther development of the medical-legal record is needed to determine whether applicant is permanently totally disabled or has permanent partial disability in excess of 40%.” The WCJ ordered the parties to develop the record with medical-legal evaluation in the field of pain management by selection of an agreed medical evaluator (AME) or, if unable to do so, to request assignment of a panel qualified medical evaluator (PQME). Applicant contends that the WCJ should have relied on the current medical and vocational evidence to find him 100% permanently disabled, with no apportionment. Defendant contends that the WCJ erred in ordering a new PQME.

Applicant sustained injury to right foot and right ankle with Chronic Pain Syndrome on June 21, 2019.

Favours Applicant prevailed

This injury was the basis for the permanent disability rating and further medical-legal development ordered.

From the decision · page 1Applicant and defendant each seek reconsideration of the Findings of Fact & Order 1 issued by the workers’ compensation administrative law judge (WCJ) on May 12, 2026. Therein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his right foot and right ankle and in the form of a Chronic Pain Syndrome but not his hip, while employed as a truck driver on June 21, 2019. The WCJ further found that as a result of the injury herein, applicant sustained “at least 40% permanent partial disability indemnity, after applicable adjustment and apportionment” and that “[f]urther development of the medical-legal record is needed to determine whether applicant is permanently totally disabled or has permanent partial disability in excess of 40%.” The WCJ ordered the parties to develop the record with medical-legal evaluation in the field of pain management by selection of an agreed medical evaluator (AME) or, if unable to do so, to request assignment of a panel qualified medical evaluator (PQME). Applicant contends that the WCJ should have relied on the current medical and vocational evidence to find him 100% permanently disabled, with no apportionment. Defendant contends that the WCJ erred in ordering a new PQME.

WCJ found at least 40% permanent partial disability but deferred permanent total disability determination pending further medical-legal evaluation in pain management.

Favours neutral

The deferral of permanent total disability determination led to the petitions for reconsideration and further proceedings.

From the decision · page 1Applicant and defendant each seek reconsideration of the Findings of Fact & Order 1 issued by the workers’ compensation administrative law judge (WCJ) on May 12, 2026. Therein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his right foot and right ankle and in the form of a Chronic Pain Syndrome but not his hip, while employed as a truck driver on June 21, 2019. The WCJ further found that as a result of the injury herein, applicant sustained “at least 40% permanent partial disability indemnity, after applicable adjustment and apportionment” and that “[f]urther development of the medical-legal record is needed to determine whether applicant is permanently totally disabled or has permanent partial disability in excess of 40%.” The WCJ ordered the parties to develop the record with medical-legal evaluation in the field of pain management by selection of an agreed medical evaluator (AME) or, if unable to do so, to request assignment of a panel qualified medical evaluator (PQME). Applicant contends that the WCJ should have relied on the current medical and vocational evidence to find him 100% permanently disabled, with no apportionment. Defendant contends that the WCJ erred in ordering a new PQME.

Diagnosed crush injury and CRPS involving right foot and ankle; opined work injury 100% responsible for disability; recommended further treatment and pain management evaluation; later opined 19% whole person impairment if recommended treatment not provided.

The WCJ ordered further medical-legal evaluation in pain management based on Dr. Fass's opinions and recommendations.

From the decision · page 6Dr. Fass diagnosed a crush injury and “CRPS involving the peripheral nerves involving the superficial peroneal and sural right Synovitis of the dorsal midfoot and Lisfranc’s joints right.” Joint Exhibit 02: QME Report of Arthur Fass, D.P.M. 9/08/2020 p. 6. Dr. Fass opined that “the work injury is 100% responsible for the patient’s disability.” He endorsed Applicant’s modified work but indicated that Applicant “may need to go on TTD if the therapy I recommend is instituted.” Dr. Fass denied that Applicant was permanent and stationary and recommended further treatment with a podiatrist, compression dressing, limb elevation, bracing, strengthening exercises and orthopedic shoes. Joint Exhibit 02: QME Report of Arthur Fass, D.P.M. 9/08/2020 p. 7.

Testified that pain management care might enable applicant to perform light sedentary work; recommended pain management evaluation and re-evaluation.

The Appeals Board relied on Dr. Fass's testimony supporting further pain management evaluation.

Concluded applicant permanently and totally disabled on vocational basis due to work injury.

Vocational evidence was considered but further medical-legal development was ordered to resolve permanent total disability claim.

From the decision · page 7Vocational Evaluation Report of Gene G. Gonzales 10/26/2021 p. 36. He concluded that Applicant was permanently and totally disabled on a vocational basis, entirely as result of the work injury. Applicant’s Exhibit 01: Vocational Evaluation Report of Gene G. Gonzales 10/26/2021 pp. 36-37.

Opined applicant amenable to vocational rehabilitation and capable of low skill sedentary jobs; concluded reasonable opportunity to work in open labor market.

Vocational evidence supporting less disability was considered but further development was ordered.

Lab. Code, §§ 5903, 5952(d)

Decisions by the Appeals Board must be supported by substantial evidence.

The Appeals Board reviewed the record and found further development of the medical-legal record necessary to support a just decision.

From the decision · page 11Thus, “an employee may challenge the presumptive scheduled percentage of permanent disability prescribed to an injury by showing a factual error in the calculation of a factor in the rating formula or application of the formula, the omission of medical complications aggravating the employee’s disability in preparation of the rating schedule, or by demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating.’ (Ogilvie, supra, at p. 1277.) Moreover, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza, supra; LeVesque v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) “The term ‘substantial evidence’ means evidence which, if true, has probative force on the issues.

Ogilvie

An employee may challenge the presumptive scheduled percentage of permanent disability by showing a factual error or greater loss of future earning capacity due to industrial injury.

The Appeals Board considered the challenge to the permanent disability rating and the need for further medical-legal development.

From the decision · page 11Thus, “an employee may challenge the presumptive scheduled percentage of permanent disability prescribed to an injury by showing a factual error in the calculation of a factor in the rating formula or application of the formula, the omission of medical complications aggravating the employee’s disability in preparation of the rating schedule, or by demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating.’ (Ogilvie, supra, at p. 1277.) Moreover, it is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza, supra; LeVesque v. Workmen’s Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) “The term ‘substantial evidence’ means evidence which, if true, has probative force on the issues.

Applicant's claim of permanent total disability on vocational basis was deferred pending further medical-legal evaluation.

From the decision · page 1Applicant and defendant each seek reconsideration of the Findings of Fact & Order 1 issued by the workers’ compensation administrative law judge (WCJ) on May 12, 2026. Therein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his right foot and right ankle and in the form of a Chronic Pain Syndrome but not his hip, while employed as a truck driver on June 21, 2019. The WCJ further found that as a result of the injury herein, applicant sustained “at least 40% permanent partial disability indemnity, after applicable adjustment and apportionment” and that “[f]urther development of the medical-legal record is needed to determine whether applicant is permanently totally disabled or has permanent partial disability in excess of 40%.” The WCJ ordered the parties to develop the record with medical-legal evaluation in the field of pain management by selection of an agreed medical evaluator (AME) or, if unable to do so, to request assignment of a panel qualified medical evaluator (PQME). Applicant contends that the WCJ should have relied on the current medical and vocational evidence to find him 100% permanently disabled, with no apportionment. Defendant contends that the WCJ erred in ordering a new PQME.