What the panel ordered
The Board rescinds the WCJ's May 18, 2022 Findings & Award and returns the matter to the trial level for further proceedings consistent with this decision.
Applicant seeks reconsideration of the Findings & Award issued on May 18, 2022, which found 85% permanent partial disability with life pension; the WCJ's report recommended denial of reconsideration; the Board rescinds the May 18, 2022 F&A and returns the matter for further proceedings.
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.
Applicant failed to present substantial medical evidence to rebut the Permanent Disability Rating Schedule (PDRS) or the Combined Values Chart (CVC). Vocational expert's report improperly included medical opinions, which is not substantial evidence. The Board found insufficient description of work restrictions and lack of medical evidence on CVC rebuttal, requiring further development of the record.
From the decision · page 1Applicant seeks reconsideration of the Findings & Award (F&A) issued on May 18, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained a catastrophic industrial injury to his lumbar spine, thoracic spine, cervical spine, right shoulder, and psyche which resulted in applicant sustaining 85% permanent partial disability with a corresponding life pension.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's vocational expert report improperly included medical opinions, which is not substantial evidence.
Favours Defendant prevailed
This undermined the vocational evidence needed to prove permanent total disability.
From the decision · page 6Applicant primarily argues that he rebutted the PDRS to show permanent total disability. However, in this case, applicant's vocational expert's report does not constitute substantial evidence as the evaluator has incorrectly and improperly interjected her own medical opinions into the case regarding applicant's work restrictions and limitations. A vocational evaluator 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.
No medical evidence was presented to rebut the Combined Values Chart (CVC).
Favours Defendant prevailed
Rebuttal of the CVC is a medical issue requiring medical evidence; lack of such evidence meant applicant failed to rebut the CVC.
From the decision · page 8Here, no medical evidence was presented at all regarding rebuttal of the CVC. It does not appear that any party asked any of the medical evaluators to address this issue. Applicant refers to the report of his vocational expert to establish rebuttal, but the report contains no such opinion. Even if the vocational expert had provided an opinion on CVC rebuttal, such an opinion would again be outside the scope of their expertise. CVC rebuttal is a medical issue, which requires medical evidence. Accordingly, we find that applicant did not present evidence rebutting the CVC.
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.
Diagnosed cervical degenerative disc disease, thoracolumbar spine Scheuermann's kyphosis, right rotator cuff tear; assigned 64% whole-person impairment; found impairments 100% industrial with no apportionment; assigned work restrictions limiting to sedentary work with no bending, stooping, or prolonged sitting; suggested vocational rehabilitation consultation as applicant may not be employable.
From the decision · page 2FACTS Applicant worked for defendant as a truck driver when he sustained an admitted industrial injury to his lumbar spine, cervical spine, and right shoulder on November 13, 2014. (Minutes of Hearing and Summary of Evidence, April 28, 2021, p. 2, lines 5-8.) Applicant alleged further injury to the thoracic spine and psyche, which the WCJ found industrial. 1. Medical Evidence Applicant was evaluated for his orthopedic injury by agreed medical evaluator (AME) Lawrence Feiwell, M.D., who authored seven reports in evidence. (Joint Exhibits A through G.) Dr. Feiwell took a history of injury as follows:
Diagnosed personality disorder with GAF score of 60; found disability 100% industrial; did not opine on work restrictions from psychological injury.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Permanent Disability Rating Schedule (PDRS) and Combined Values Chart (CVC) rebuttal requires substantial medical evidence and proper vocational expert testimony.
Applicant failed to present substantial medical evidence to rebut PDRS or CVC; vocational expert's report improperly included medical opinions, which is not substantial evidence; further development of record required.
From the decision · page 6In 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").
What proof carried it
The evidence the panel weighed, by kind.
Vocational expert's report improperly included medical opinions, which is not substantial evidence.
From the decision · page 6Applicant primarily argues that he rebutted the PDRS to show permanent total disability. However, in this case, applicant's vocational expert's report does not constitute substantial evidence as the evaluator has incorrectly and improperly interjected her own medical opinions into the case regarding applicant's work restrictions and limitations. A vocational evaluator 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.
Lack of medical evidence on Combined Values Chart rebuttal; vocational expert report contained no opinion on CVC rebuttal.
From the decision · page 8Here, no medical evidence was presented at all regarding rebuttal of the CVC. It does not appear that any party asked any of the medical evaluators to address this issue. Applicant refers to the report of his vocational expert to establish rebuttal, but the report contains no such opinion. Even if the vocational expert had provided an opinion on CVC rebuttal, such an opinion would again be outside the scope of their expertise. CVC rebuttal is a medical issue, which requires medical evidence. Accordingly, we find that applicant did not present evidence rebutting the CVC.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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