ADJ3317169 · May 21, 2025

Applicant proved permanent total disability through medical and vocational evidence showing complete loss of earning capacity due to industrial injuries; defendant failed to prove apportionment of disability to non-industrial causes.

From the decision · page 1The WCJ found, in pertinent part, that due to the combined effect of multiple injuries, applicant was not amenable to participate in vocational rehabilitation and was unable to compete in the open labor market and issued a joint and several award of 100% permanent total disability without apportionment.

Applicant has multiple industrial injuries with cumulative effects causing significant disability.

Favours Applicant prevailed

This established the basis for permanent total disability finding due to combined injuries.

From the decision · page 2Applicant suffered a prior industrial injury on November 8, 1995, (ADJ2130054) to his left shoulder which was resolved by a stipulated award for permanent disability of 14.5% and was not at issue in this case. Applicant tripped and fell on April 27, 1999, injuring his neck, left arm, left hand, right hand and left shoulder (ADJ4055925). Applicant tripped and fell again on May 29, 2000, injuring his head and right hand (ADJ728821). Applicant fell again on October 3, 2000, injuring his right hand and right knee (ADJ2475719). On October 26, 2001, Applicant tripped and fell again injuring his bilateral hands, right wrist, left ring finger, left little finger, back, neck and headaches (ADJ207659). On February 4, 2003, applicant was injured when a chair he sat in collapsed injuring his neck, back, headaches, right arm and right shoulder (ADJ3052880). Applicant sustained a cumulative trauma through May 4, 2007, injuring his bilateral wrists, bilateral hands, neck, back and erectile dysfunction (ADJ3317169).

AME Dr. Feinberg assigned significant work restrictions limiting applicant to sedentary activities and use of assistive devices.

Favours Applicant prevailed

These medical restrictions supported the finding of permanent total disability.

From the decision · page 3In terms of work status, he could not go back to his former job duties. From my perspective he could not reengage in the open labor market but the final decision in this regard would need input from a forensic psychiatrist and vocational specialist. Subjective factors of disability could be described as slight to moderate pain becoming severe with substantial work activities. Objective factors of disability included abnormal radiographs, loss of range of motion, atrophy and decreased strength. He described bowel and bladder dysfunction.

Both vocational experts agreed applicant was not amenable to rehabilitation and had complete loss of earning capacity.

Favours Applicant prevailed

Vocational evidence confirmed the total loss of earning capacity due to industrial injury.

From the decision · page 4expert. Mr. O'Keefe evaluated applicant and authored two reports in evidence. (Applicant's Exhibits 21 and 23.) Defendant retained Steven Koobatian, Ph.D. as its expert who authored four reports in evidence. (Applicant's Exhibit 22; Defendant's Exhibits NN-PP.) Both vocational experts agreed that applicant was not amenable to rehabilitation due to the industrial injury and suffered from a complete loss of earning capacity. (Defendant's Exhibit PP, Report of Steven Koobatian, Ph.D., November 30, 2020, p. 2.)

Defendant failed to present medical evidence to prove apportionment of disability to non-industrial causes.

Favours Applicant prevailed

Lack of medical evidence on apportionment led to no apportionment of disability.

From the decision · page 7When applicant's disability is based upon work restriction(s), to prove apportionment defendant must prove that the work restriction(s) are attributable to non-industrial causes. No such evidence exists in this case, and thus, applicant's disability is not apportioned.

Applicant has work restrictions limiting him to sedentary activities, precluding return to former job duties and open labor market; use of wheelchair or assistive walking device medically reasonable; disability includes pain, abnormal radiographs, loss of range of motion, atrophy, decreased strength, bowel and bladder dysfunction.

AME provided significant work restrictions due to industrial injuries; no evidence to ignore these opinions.

From the decision · page 3In terms of work status, he could not go back to his former job duties. From my perspective he could not reengage in the open labor market but the final decision in this regard would need input from a forensic psychiatrist and vocational specialist. Subjective factors of disability could be described as slight to moderate pain becoming severe with substantial work activities. Objective factors of disability included abnormal radiographs, loss of range of motion, atrophy and decreased strength. He described bowel and bladder dysfunction.

Agreed applicant was not amenable to rehabilitation and suffered complete loss of earning capacity; provided opinion on vocational apportionment estimating 10-20% to non-industrial factors, but opinion not accepted as medical evidence on apportionment.

Vocational expert opinion on apportionment not proper medical evidence; opinion not precise and merely provided a range.

From the decision · page 4expert. Mr. O'Keefe evaluated applicant and authored two reports in evidence. (Applicant's Exhibits 21 and 23.) Defendant retained Steven Koobatian, Ph.D. as its expert who authored four reports in evidence. (Applicant's Exhibit 22; Defendant's Exhibits NN-PP.) Both vocational experts agreed that applicant was not amenable to rehabilitation due to the industrial injury and suffered from a complete loss of earning capacity. (Defendant's Exhibit PP, Report of Steven Koobatian, Ph.D., November 30, 2020, p. 2.)

Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal. App. 4th 1262

Permanent total disability rebuttal under Ogilvie v. Workers' Comp. Appeals Bd.

Applicant proved complete loss of future earning capacity due to industrial injury, rebutting scheduled rating.

From the decision · page 4I. To properly analyze whether applicant is permanently totally disabled, one must understand how permanent total disability rebuttal works. As our Supreme Court has explained:

Medical expert must make determinations on apportionment under Labor Code section 4663 as held in Nunes decisions.

Vocational expert opinion on apportionment is not proper medical evidence and was rejected.

From the decision · page 7The reporting of defendant's vocational expert is not substantial evidence as to the issue of apportionment. In 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 disability, and that vocational evidence must address apportionment, but that a vocational evaluator may not opine on issues that require expert medical evidence. The Board affirmed these holdings in Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 23 Cal. Wrk. Comp. LEXIS 46 [88 Cal.Comp.Cases 894] ("Nunes II").

Applicant's testimony about inability to fully recover between multiple injuries and need for caregiver assistance with activities of daily living

From the decision · page 2Applicant testified that he kept trying to go to work between each of these injuries but he never fully recovered between them. (MOH/SOE, 8/14/18, 7:16 - 17.) He testified that he retired from teaching in 2008. (MOH/SOE, 3/17/21, 3:37.)

Medical evidence from AME Dr. Feinberg showing significant work restrictions and physical impairments

From the decision · page 3In terms of work status, he could not go back to his former job duties. From my perspective he could not reengage in the open labor market but the final decision in this regard would need input from a forensic psychiatrist and vocational specialist. Subjective factors of disability could be described as slight to moderate pain becoming severe with substantial work activities. Objective factors of disability included abnormal radiographs, loss of range of motion, atrophy and decreased strength. He described bowel and bladder dysfunction.

Vocational expert agreement that applicant is not amenable to rehabilitation and has complete loss of earning capacity

From the decision · page 4expert. Mr. O'Keefe evaluated applicant and authored two reports in evidence. (Applicant's Exhibits 21 and 23.) Defendant retained Steven Koobatian, Ph.D. as its expert who authored four reports in evidence. (Applicant's Exhibit 22; Defendant's Exhibits NN-PP.) Both vocational experts agreed that applicant was not amenable to rehabilitation due to the industrial injury and suffered from a complete loss of earning capacity. (Defendant's Exhibit PP, Report of Steven Koobatian, Ph.D., November 30, 2020, p. 2.)