ADJ9159725 — California WCAB decision

What the panel ordered

Findings and Award issued on October 24, 2022, rescinded; matter returned to trial level for further proceedings

Petition for Reconsideration granted to study factual and legal issues; decision after reconsideration issued rescinding prior Findings and Award and returning matter to trial level for further proceedings

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold September 11, 2019.

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.

Permanent disability ratingRemandedspine · lower extremities · cervical spine · right knee · left hip · bilateral knees · bilateral ankles · ears

The Board found that applicant failed to prove that work restrictions were 100% industrial in origin, and that vocational expert improperly gave medical opinions, thus substantial evidence was lacking to support permanent total disability and apportionment findings. The matter was remanded for further development of the record.

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial cumulative injury which rated to 100% permanent total disability, without apportionment, based upon the reporting of applicant's vocational evaluator.

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.

AMERelied upon · ears

Assigned 2% WPI to hearing loss and work restrictions based on Almaraz-Guzman analysis.

Dr. Roven's hearing loss rating and restrictions were part of the overall disability evaluation.

From the decision · page 4For complaints to the ears, including hearing loss, applicant was evaluated by AME Alfred Roven, M.D., who authored four reports in evidence. (Joint Exhibits 11 through 14.)

AMERelied upon · internal medicine

Initially diagnosed hypertension rated at 9% WPI but later found no hypertension; concluded applicant could proceed with usual occupation.

Dr. Levister's medical opinions on internal complaints and impairment ratings were considered in the disability evaluation.

From the decision · page 5Applicant was evaluated for internal complaints by AME Ernest Levister, Jr., M.D., who authored three reports in evidence. (Joint Exhibits 1 through 3.)

vocational_expertRejected

Opined applicant could work part-time in various jobs but assigned 25% vocational apportionment based on non-industrial factors; vocational opinion on apportionment rejected as medical opinion.

Vocational expert's apportionment opinion was rejected as it constituted a medical opinion beyond vocational expertise.

From the decision · page 6Defendant retained Rebecca Montano, Ph.D., as its vocational expert, who authored two reports in evidence. (Defendant's Exhibits A and B.) Applicant tested near average across all skill sets with normal intelligence levels. (Defendant's Exhibit A, Report of Rebecca Montano, Ph.D., April 3, 2020, at pp. 50-51.)

AMERelied upon

Assigned permanent work restrictions for multiple body parts including cervical spine, shoulders, elbows, wrists, lumbar spine, left hip, and bilateral knees.

Dr. Luciano provided detailed work restrictions that were considered in the vocational feasibility analysis and permanent disability rating.

From the decision · page 3Status post left total hip replacement surgery. 17. Decreased range of motion, left hip. 18. Antalgic gait. 19. Decreased motor strength, bilateral quadriceps. 20. Crepitation, bilateral knees. (Exhibit 9, Report of AME Michael Luciano, M.D., November 3, 2020, pp. 37-38.) Dr. Luciano assigned permanent work restrictions as follows: For the cervical spine condition as diagnosed today, the patient is prophylactically precluded from heavy lifting, repetitive motion and above-shoulder-level work.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Nunes v. State of California, Dept. of Motor Vehicles (2023) 23 Cal. Wrk. Comp. LEXIS 46

Labor Code section 4663 requires a reporting physician to make medical determinations including apportionment; vocational evidence may address permanent disability but not medical issues

Applied to reject vocational expert's medical opinions and require medical evidence for apportionment

From the decision · page 9In 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").

Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman) (2010) 187 Cal. App. 4th 808

Labor Code section 4664(c)(1) precludes accumulation of disability beyond 100% for any one body region; rating should be assigned to body system generating higher rating

Applied to clarify rating under section 4664(c) and remand for further development

From the decision · page 12The purpose of 4664(c) is to preclude accumulation of disability beyond 100% "with respect to any one region of the body". The overarching goal of rating permanent impairment is to achieve accuracy. (Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman) (2010) 187 Cal. App. 4th 808, 822 [115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837].) It has consistently been held that where applicant's disability can be rated using multiple methods, applicant is entitled to the higher rating. (Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal. App. 4th 1262, 1277, 129 Cal. Rptr. 3d 704 [permitting rebuttal of the rating schedule with alternative higher rating based upon diminished future earnings]; see also, Grossmont Union High School District v. Workers' Comp. Appeals Bd. (Burns) (1997) 62 Cal. Comp. Cases 687, [1997 Cal. Wrk. Comp. LEXIS 4483] (writ denied) [establishing dual-occupational rule, which allows for higher of two ratings when applicant's occupation spans two categories]; Hartford Accident & Indemnity Company v. Workers' Comp. Appeals Bd. (Suttner) (1990) 55 Cal. Comp. Cases 127, [1990 Cal.

ADJ9159725 · December 19, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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