ADJ9880634 — California WCAB decision

ADJ9880634 · September 28, 2023

The CA-WCAB panel affirms the April 5, 2021 decision except for Findings of Fact 4 and 6 and Paragraph (a) of the Award, which are rescinded. The issues of permanent disability, apportionment, and attorney's fees are deferred and the case is returned to the WCJ for further proceedings and new decision consistent with this opinion.

Issues decided

Medical opinions weighed

Authorities named

District office

Redding

What the panel ordered

Decision After Reconsideration by the CA-WCAB panel on April 5, 2021, granting reconsideration of the WCJ's Findings and Award of January 12, 2021, and now this decision rescinds parts of the April 5, 2021 decision and returns the case to the WCJ for further proceedings on permanent disability, apportionment, and attorney's fees.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold April 5, 2021.

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 ratingRemandedinternal injuries · orthopedic injury

The Board found that the WCJ and vocational expert's apportionment analysis was inconsistent with the Board's en banc decisions in Nunes I and II, requiring the case to be returned to the WCJ for further proceedings and a new decision on permanent disability and apportionment.

The facts that decided it

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.

QMENot substantial evidence · internal medicine

Provided specific work restrictions supporting permanent and total disability based on internal injuries alone.

Applicant contended Dr. Anderson's opinions support permanent and total disability under Labor Code section 4662(b).

QMERelied upon · orthopedics

Assigned impairment and apportionment percentages to various body parts, including 25% non-industrial apportionment for orthopedic disability.

Dr. Brown's apportionment findings were discussed in relation to the Nunes decisions.

From the decision · page 2Defendant filed an answer. Based on our review of the record and applicable law, we conclude that this matter must be returned to the trial level for further proceedings and new decision on permanent disability and apportionment by the WCJ, in light of and consistent with the Appeals Board's recent en banc decisions in Nunes v. State of California, Dept. of Motor Vehicles (2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] ("Nunes I") and Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 23 Cal. Wrk. Comp. LEXIS 46 [88 Cal.Comp.Cases --] ("Nunes II"). The WCJ may further develop the record, to the extent deemed necessary or appropriate, to resolve any issue(s) arising under the Nunes decisions, consistent with the manner of developing the record discussed in Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 [Appeals Board en banc].) In Nunes I, the applicant sustained a specific injury to her neck, upper extremities, and left shoulder, and a cumulative trauma injury to her bilateral upper extremities. Dr.

QMERejected

Provided an apportionment opinion of 25% non-industrial for orthopedic disability, which was discounted by the WCJ and vocational expert.

The WCJ and vocational expert discounted Dr. Sommer's apportionment opinion, contrary to Board precedent.

The rules the panel named

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

CA-WCAB en banc

Nunes v. State of California, Dept. of Motor Vehicles (2023) 2023 Cal. Wrk. Comp. LEXIS 30

Clarifies that vocational apportionment is impermissible and medical apportionment is required.

From the decision · page 3Accordingly, the Board held in Nunes I: Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and the Labor Code makes no statutory provision for "vocational 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 such evidence may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. The Board explained that an analysis of whether there are valid sources of apportionment is still required, even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant's inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.

California Labor Code

Labor Code section 4662(b)

Supports finding of permanent and total disability based on medical opinions.

California Labor Code

Labor Code section 4663

Requires reporting physician to make an apportionment determination and prescribes the standard for apportionment.

From the decision · page 3Accordingly, the Board held in Nunes I: Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and the Labor Code makes no statutory provision for "vocational 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 such evidence may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. The Board explained that an analysis of whether there are valid sources of apportionment is still required, even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant's inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.

CA-WCAB en banc

Reiterates that vocational experts cannot substitute medical apportionment and that physicians regularly consider vocational evidence.

From the decision · page 4In Nunes II, the Board denied applicant's petition for reconsideration of Nunes I, reiterating its holdings and further explaining them. The Board observed that Dr. Brown had described apportionment related to each of the various injured body parts or conditions, but had not been asked to address apportionment in relation to the factors identified by the vocational experts. The Board rejected applicant's contention that evaluating physicians are ill-equipped and unwilling to assess vocational evidence. Rather, treating and evaluating physicians regularly review, assess, and opine on vocational issues, from the gathering of vocational information relevant to the determination of causation, to the final assessment of permanent disability and work restrictions. Further, vocational evidence is an important, and often integral, consideration in the preparation of medical-legal reporting, and is fully within the purview of the evaluating physician to offer an opinion responsive to the vocational evidence either at the request of the parties, or of the physician's own accord. (Nunes II, 23 Cal. Wrk. Comp. LEXIS 46, slip opinion at pp. 12-16.)

ADJ9880634 · September 28, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

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