ADJ7316783 · September 24, 2026

The Board deferred the issue of apportionment for further proceedings due to lack of final medical-legal opinions and unresolved apportionment issues.

From the decision · page 188. The issue of apportionment is deferred.

The Board deferred the issue of attorney's fees for further proceedings.

From the decision · page 1811. The issue of attorney’s fees is deferred.

The Board deferred the issue of injury in the form of headaches and memory loss for further medical-legal reporting and clarification due to insufficient final neurological reporting.

From the decision · page 181. the applicant, while employed during the period of January 1, 2005 through October 31, 2009 as an office manager, occupational group number 214, at Santa Barbara, California by Ehlen, Spiess & Haight, Inc., sustained injury arising out of and in the course of employment to her left shoulder, neck, psyche and TMJ, right shoulder, and teeth. The issue of whether applicant sustained injury in the form of memory loss and headaches is deferred.

The Board found substantial evidence supporting industrial injury to these body parts and affirmed the WCJ's finding of injury.

From the decision · page 181. the applicant, while employed during the period of January 1, 2005 through October 31, 2009 as an office manager, occupational group number 214, at Santa Barbara, California by Ehlen, Spiess & Haight, Inc., sustained injury arising out of and in the course of employment to her left shoulder, neck, psyche and TMJ, right shoulder, and teeth. The issue of whether applicant sustained injury in the form of memory loss and headaches is deferred.

The Board deferred the issue of permanent disability for further proceedings due to insufficient evidence to rebut the Permanent Disability Rating Schedule (PDRS).

From the decision · page 187. The issue of permanent disability is deferred.

Applicant sustained industrial injury to left shoulder, neck, psyche, TMJ, right shoulder, and teeth.

Favours Applicant prevailed

Supported by multiple medical-legal opinions and accepted by the Board, leading to affirmation of injury findings.

From the decision · page 181. the applicant, while employed during the period of January 1, 2005 through October 31, 2009 as an office manager, occupational group number 214, at Santa Barbara, California by Ehlen, Spiess & Haight, Inc., sustained injury arising out of and in the course of employment to her left shoulder, neck, psyche and TMJ, right shoulder, and teeth. The issue of whether applicant sustained injury in the form of memory loss and headaches is deferred.

Insufficient final medical-legal reporting on headaches and memory loss injuries.

Favours neutral

Led to deferral of these injury issues for further medical development.

From the decision · page 181. the applicant, while employed during the period of January 1, 2005 through October 31, 2009 as an office manager, occupational group number 214, at Santa Barbara, California by Ehlen, Spiess & Haight, Inc., sustained injury arising out of and in the course of employment to her left shoulder, neck, psyche and TMJ, right shoulder, and teeth. The issue of whether applicant sustained injury in the form of memory loss and headaches is deferred.

Applicant failed to rebut the Permanent Disability Rating Schedule with substantial evidence on record.

Favours neutral

Resulted in deferral of permanent disability and apportionment issues for further proceedings.

From the decision · page 17case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2003) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) Although applicant failed to rebut the PDRS by way of substantial evidence on the record before us, applicant presents a credible argument that she may be precluded from work on the open labor market due to the industrial injury. As we have very recently clarified the roles of the medical and vocational evaluators as well as the evidentiary standard for CVC rebuttal, it would appear prudent to allow further development of the record on this issue. (See Gangwish v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284.) Finally, we note that our February 28, 2023 Order to Obtain Transcript was not complied with and thus, upon return the January 13, 2022 and February 24, 2022 transcripts should be prepared absent a resolution of the case by the parties. Accordingly, as our Decision After Reconsideration, we affirm the WCJ’s June 14, 2022 F&A except that we amend it to defer the issues of whether applicant sustained injury in the form of headaches and memory loss (Finding of Fact 1; Award a) and of permanent disability (Findings of Fact 7, 8, 11; Award c, d, g) and return the matter to the trial level for further proceedings consistent with this decision. We make no other substantive changes to the F&A.

Diagnosed TMJ as industrial injury; explained TMJ-related dental injury and periodontal condition aggravation; accepted by defendant.

Provided dental injury causation and diagnosis; defendant accepted injury to teeth as industrial.

From the decision · page 12Ongoing, in 2018, applicant continued to complain of memory issues. Clearly, final neurological reporting on applicant’s memory injury is also necessary. Applicant’s injury to teeth is clear. Dr. Gabriel diagnosed applicant with TMJ/TMD, and defendant accepted injury to this body part. Dr. Gabriel carefully explained how individuals with TMJ suffer injury to their teeth. Applicant’s periodontal condition was aggravated on an industrial basis causing an acceleration in the rate which periodontal structure dysfunction. At this juncture, as a compensable consequence to her TMJ, applicant already needs a crown on her tooth #19. Accordingly, we agree with the WCJ’s finding of industrial causation to applicant’s teeth, but we will defer the issue of whether applicant sustained injury in the form of headaches and memory loss.

Consulting physician who found industrial causation for headaches and memory loss but did not review medical records; reports copied to treating physicians.

Supported industrial causation for headaches and memory loss; lack of final neurological report deferred issue.

From the decision · page 12(Id. at pp. 403-404, footnotes omitted.) Concerning industrial headaches and memory, defendant argues that Dr. Frecker’s reporting is not substantial medical evidence because he did not review applicant’s medical records and applicant’s use of industrial medication could have caused a lack of focus and/or concentration. However, Dr. Frecker served as a consulting physician. Applicant’s treating physicians and QME Dr. Kahmann, were copied with the reports. Subsequently, Dr. Kahmann, found industrial causation for headaches and included “headaches” in his Diagnoses section. In his final report, current orthopedic QME Dr. Ovadia deferred the final reporting on applicant’s cervicogenic headaches to an appropriate neurological specialist. The lack of final reporting for a neurologist does not render applicant’s headaches non-industrial, it simply highlights the need for additional, clarifying medical-legal reporting on headaches. Applicant’s memory loss injury is more complicated. Dr. Frecker found it to be industrial, but as of 2017, Dr. Stanwyck, a neurologist, found no evidence of memory issues.

Deferred final reporting on cervicogenic headaches to a neurologist; continued deferral on combining orthopedic and psychiatric impairments.

Insufficient final neurological reporting on headaches and memory loss; deferral for further medical-legal reporting.

From the decision · page 3cervical condition and muscle tightness, and her memory disturbance more related to her otherwise ongoing medical condition.” (Id. at p. 2.) According to the summary of medical records by QME Dr. Ovadia (Applicant’s Exhibit 1), after the consultation with Dr. Frecker through 2012, applicant underwent several cervical spine procedures including left C5 nerve root block; bilateral cervical median branch blocks at the C4, C5, C6 and C7; bilateral medial branch rhizotomies at C4, C5, C6 and C[7]; and right C6-7 epidural steroid injection. (Id. at p. 9.) On October 23, 2012 QME Dr. Kahmann included applicant’s headaches in his “Diagnoses” and observed applicant had “frequent slight headaches which increase to moderate on occasion.” (Applicant’s Exhibit 18, at p. 2.) On March 18, 2013, applicant was evaluated by Dr. Ovadia, and applicant reported that her neck symptoms increased postoperatively associated with constant headaches. (Applicant’s Exhibit 9, at p. 4.) In 2016 and 2017, applicant sought emergency room care for her headaches.

Diagnosed major depression and anxiety disorder with over 51% industrial causation; assigned 34% WPI with 30% non-industrial apportionment; did not assign work restrictions but deferred to vocational expert on employability.

Provided psychiatric causation and disability opinions; no work restrictions assigned; vocational expert needed for employability assessment.

From the decision · page 6(Applicant’s Exhibit 20, at pp. 2, 18-19.) Initially, on Axis 1, Dr. Stanwyck diagnosed applicant with major depression, recurrent, severe, without psychotic features; pain disorder associated with both psychological factors and a general medical condition; and anxiety disorder, NOS, with features of both generalized anxiety and panic attacks and found “over 51% causation of the depression is due to the sequelae of her work-related industrial orthopedic injuries and she has, therefore, sustained an industrial psychiatric injury.” (Id. at pp. 18, 19-20.) Eventually, applicant’s diagnoses expanded to include amphetamine abuse in full remission. (Applicant’s Exhibit 25, at pp. 14, 16.) On March 10, 2017, applicant’s GAF was 48 with a corresponding WPI of 34%, and 30% non-industrial apportionment of permanent disability. (Applicant’s Exhibit 26, at p. 36.) Dr. Stanwyck indicated that the 70% industrial causation could be caused by orthopedic injury and/or associated pain. (Id. at p. 35.) At his deposition, Dr. Stanwyck confirmed his assignment of WPI of 34% with 30% non- industrial apportionment. (Applicant’s Exhibit 34, at pp. 58:23-25.)

Initially included headaches in diagnoses; found industrial causation for headaches; copied with consulting physician reports.

Supported industrial causation for headaches; reports copied to treating physicians; final neurological report deferred.

From the decision · page 3cervical condition and muscle tightness, and her memory disturbance more related to her otherwise ongoing medical condition.” (Id. at p. 2.) According to the summary of medical records by QME Dr. Ovadia (Applicant’s Exhibit 1), after the consultation with Dr. Frecker through 2012, applicant underwent several cervical spine procedures including left C5 nerve root block; bilateral cervical median branch blocks at the C4, C5, C6 and C7; bilateral medial branch rhizotomies at C4, C5, C6 and C[7]; and right C6-7 epidural steroid injection. (Id. at p. 9.) On October 23, 2012 QME Dr. Kahmann included applicant’s headaches in his “Diagnoses” and observed applicant had “frequent slight headaches which increase to moderate on occasion.” (Applicant’s Exhibit 18, at p. 2.) On March 18, 2013, applicant was evaluated by Dr. Ovadia, and applicant reported that her neck symptoms increased postoperatively associated with constant headaches. (Applicant’s Exhibit 9, at p. 4.) In 2016 and 2017, applicant sought emergency room care for her headaches.

Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 88 Cal.Comp.Cases 894 ("Nunes II")

Permanent Disability Rating Schedule (PDRS) rebuttal requires substantial medical and vocational evidence, including work restrictions and vocational expert testimony.

Applied to evaluate permanent disability and apportionment evidence.

From the decision · page 15requires a reporting physician to make medical determinations in a case, including determinations on the issue of apportionment. The Appeals 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 Appeals Board affirmed these holdings in Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 88 Cal.Comp.Cases 894 (“Nunes II”). In the en banc decision in Vigil, the Appeals Board clarified the process for rebutting the CVC. One element of the PDRS is the Combined Values Chart (CVC).

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

Medical opinion must be framed in terms of reasonable medical probability, based on pertinent facts and adequate examination, and supported by reasoning to constitute substantial evidence.

Applied to assess the sufficiency of medical-legal opinions in the case.

From the decision · page 16on 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.) In this case, QME Dr. Stanwyck has failed to assign applicant with any psychiatric work restrictions. In the alternative, Dr. Stanwyck discussed diminished and/or reduced ability to function. Work restrictions are not the same as diminished and/or reduced ability to function. Furthermore, the medical-legal opinions on CVC rebuttal do not constitute substantial medical evidence. To date, Dr. Ovadia continues to defer to Dr.

Applicant's credible argument that she may be precluded from work on the open labor market due to industrial injury.

From the decision · page 17case. (McDuffie v. Los Angeles County Metropolitan Transit Authority (2003) 67 Cal.Comp.Cases 138 (Appeals Board en banc).) Although applicant failed to rebut the PDRS by way of substantial evidence on the record before us, applicant presents a credible argument that she may be precluded from work on the open labor market due to the industrial injury. As we have very recently clarified the roles of the medical and vocational evaluators as well as the evidentiary standard for CVC rebuttal, it would appear prudent to allow further development of the record on this issue. (See Gangwish v. Workers’ Comp. Appeals Bd. (2001) 89 Cal.App.4th 1284.) Finally, we note that our February 28, 2023 Order to Obtain Transcript was not complied with and thus, upon return the January 13, 2022 and February 24, 2022 transcripts should be prepared absent a resolution of the case by the parties. Accordingly, as our Decision After Reconsideration, we affirm the WCJ’s June 14, 2022 F&A except that we amend it to defer the issues of whether applicant sustained injury in the form of headaches and memory loss (Finding of Fact 1; Award a) and of permanent disability (Findings of Fact 7, 8, 11; Award c, d, g) and return the matter to the trial level for further proceedings consistent with this decision. We make no other substantive changes to the F&A.

Lack of final medical-legal opinions on cervicogenic headaches and memory loss injuries.

From the decision · page 16A vocational expert 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. Furthermore, with full knowledge that Dr. Stanwyck failed to assign applicant work restrictions, applicant’s vocational expert has chosen to ignore this failing and the medical apportionment assigned by Dr. Ovadia. Finally, neither vocational expert has reviewed any final reporting on applicant’s cervicogenic headaches and memory loss injuries because it does not yet exist. The WCJ and the Appeals Board have a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to “ensure substantial justice in all cases.” (Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) The Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Id. at p. 404.) The preferred procedure is to allow supplementation of the medical record by the physicians who have already reported in the