What the panel treated as outcome-determinative, and which side it favoured.
Surveillance video showed limited physical activity, but medical evidence indicated greater physical limitations and cognitive impairment than the video suggested.
Favours Applicant prevailed
This supported the rejection of defendant's contention that applicant was substantially functional.
From the decision · page 7The video evidence which defendant touts as being significant and inconsistent with applicants'
vocational experts' opinion and consistent with its' vocational experts' opinion of applicants
increased functional ability is a misrepresentation of the evidence. The video lasts approximately
two minutes and nineteen seconds on both days. On the first day it shows applicant walk from his
garage to the front of his house twice. On the second trip he carried a newspaper. On the second
day the video shows applicant walk from his driveway to a truck parked in the street in front of his
house. Applicant spoke to a man standing at the rear of the truck for approximately three minutes
before walking back into a side gate with no further activity observed.
Applicant sustained an industrial injury on March 16, 2015 to multiple body parts including head, brain, ears, eyes, excretory system, nervous system, knees, and sexual dysfunction.
Favours Applicant prevailed
This injury was stipulated by the defendant and formed the basis for the disability findings.
From the decision · page 2We further note the City stipulated at trial that on March 6, 2015, applicant sustained
industrial injury to his head, brain, eyes, ears, nervous system, excretory system, knees, and sexual
dysfunction. (Trial transcript, arbitration hearing of 8/4/20, p. 3.) The City's belated allegation
that eyewitness testimony shows a different cause of injury is not good cause to disregard its trial
stipulation that applicant sustained an industrial injury to multiple body parts and systems.
(Robinson v. Workers' Comp. Appeals Bd. (1987) 194 Cal.App.3d 784 [52 Cal.Comp.Cases 419];
All medical evaluators agreed that applicant's current disability is entirely due to the 2015 industrial injury, with no contribution from prior injuries or non-industrial causes.
Favours Applicant prevailed
This unanimous medical opinion supported the finding of total permanent disability and causation.
From the decision · page 1OPINION AND DECISION
AFTER RECONSIDERATION
The Appeals Board granted reconsideration to study the factual and legal issues. This is
our Decision After Reconsideration.
In the Findings and Award dated November 4, 2020, the Workers' Compensation
Arbitrator ("Arbitrator") found that applicant is "100% permanently totally disabled pursuant to
Labor Code section 4662(a)(4)1 total mental incapacity; and/or LeBoeuf v. Workers' Comp.
Appeals Bd. (1983) 34 Cal.3d 234," and that "all of applicant's current disability is apportioned to
his March 6, 2015 industrial traumatic brain injury per the AMEs and QME in neurology,
neuropsychology, urology, orthopedic and ophthalmology."
Applicant's employer, the City of Los Angeles ("City"), filed a timely petition for
reconsideration of the Arbitrator's decision.
Defendant's vocational expert did not perform objective testing and relied on applicant's subjective statements, which were contradicted by medical findings of severe cognitive impairment.
Favours Applicant prevailed
This undermined the credibility of defendant's vocational expert and supported the finding of total disability.
From the decision · page 7Defendants vocational experts' report is entirely non-credible and non-substantial as he conducted
no vocational testing of applicants cognitive and physical ability to perform relevant tasks. He
relied on applicants statements as to what the applicant thought he was capable of performing
which ignored the AME in neuropsychology Dr. Conover's diagnosis of Anosognosia found on
pg. 4 of the 1-11-2020 report regarding applicant's lack of endorsement of ongoing symptoms due
to his severe cognitive issues (Exhibit MM13). Finally, he relied on his subjective training and
experience to conclude that applicant could compete in the open labor market and was a feasible