ADJ11073230 · March 24, 2025

The WCA found applicant's disability to be permanent and total based on vocational expert Simon's opinion that applicant was precluded from return to the open labor market, despite defense expert Westman's contrary opinion. The Appeals Board granted reconsideration to further review this finding.

From the decision · page 1Defendant Bluewater Industries, Inc. and Zurich American Insurance Company (defendant) seeks reconsideration of the December 13, 2024 Findings of Fact and Award (F&A), wherein the workers' compensation arbitrator (WCA) found that applicant, while employed as an asbestos removal worker on September 25, 2017, sustained industrial injury to his lumbar spine resulting in permanent and total disability.

Applicant sustained industrial injury to lumbar spine on September 25, 2017.

Favours Applicant prevailed

This injury is the basis for the permanent disability claim and evaluation.

From the decision · page 3Applicant sustained admitted injury to his lumbar spine while employed as an asbestos removal worker by defendant Bluewater Industries on September 25, 2017.

Vocational expert Simon's opinion that applicant is precluded from return to open labor market was found persuasive and substantial evidence supporting permanent and total disability.

Favours Applicant prevailed

This opinion was the basis for the WCA's finding of permanent and total disability.

Defense vocational expert Westman's opinion that applicant could reenter the open labor market was found to have substantial defects and was less persuasive.

Favours Defendant prevailed

This weakened the defense's argument against permanent and total disability.

WCA ordered development of the record regarding vocational rehabilitation feasibility and deferred final determination pending vocational program completion.

Favours Applicant prevailed

This procedural development affected the timing and basis of the disability determination.

From the decision · page 4On April 8, 2024, the WCA issued his Amended findings of Fact and Award, and in relevant part, determined that the record required development with respect to the issue of whether applicant's permanent disability was partial or total. (Findings of Fact and Award, dated April 8, 2024, Finding of Fact No. 5.) The WCA awarded interim permanent disability of 54 percent and entered additional orders regarding development of the record with respect to the Supplemental Job Displacement Voucher benefit (SJDV). (Order No. "a".)

Provided medical evaluation as applicant's QME relevant to permanent disability and vocational feasibility.

From the decision · page 3The parties to this matter are subject to an Alternative Dispute Resolution (ADR) agreement authorized under section 3201.5, entitled the Basic Crafts Workers' Compensation Program. (Lab. Code, § 3201.5.) Pursuant to the ADR agreement, applicant has selected Adam Stoller, M.D., as his Qualified Medical Evaluator (QME), while defendant has selected Steven Feinberg, M.D., as the defense QME. Applicant has obtained reporting from vocational expert Scott Simon, while defendant has obtained reporting from vocational expert James Westman.

Provided medical evaluation as defense QME relevant to permanent disability and vocational feasibility.

From the decision · page 3The parties to this matter are subject to an Alternative Dispute Resolution (ADR) agreement authorized under section 3201.5, entitled the Basic Crafts Workers' Compensation Program. (Lab. Code, § 3201.5.) Pursuant to the ADR agreement, applicant has selected Adam Stoller, M.D., as his Qualified Medical Evaluator (QME), while defendant has selected Steven Feinberg, M.D., as the defense QME. Applicant has obtained reporting from vocational expert Scott Simon, while defendant has obtained reporting from vocational expert James Westman.

Lab. Code, §§ 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Board may develop the record when medical record is not substantial evidence or to provide due process or fully adjudicate issues.

The WCA appropriately exercised authority to develop the record and defer issue of vocational rehabilitation feasibility.

From the decision · page 8It is well-established that the Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 404 [65 Cal.Comp.Cases 264] (Kuykendall).) Accordingly, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924] (Tyler); see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261] (McClune).) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc) (McDuffie), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence... at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record...the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.)

Escobedo, supra; E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922

Vocational expert's opinion must detail history and evidence supporting conclusions and explain how specific conditions cause permanent disability.

The WCA reviewed vocational expert reports for substantial evidence and persuasive methodology.

From the decision · page 7The same considerations used to evaluate whether a medical expert's opinion constitutes substantial evidence are equally applicable to vocational reporting. In order to constitute substantial evidence, a vocational expert's opinion must detail the history and evidence in support of its conclusions, as well as "how and why" any specific condition or factor is causing permanent disability. (Escobedo, supra, at p. 611; see also E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922 [71 Cal. Comp. Cases 1687].)

Labor Code section 4663(c); Guzman

Evaluating physicians must consider vocational evidence in determining permanent disability, including feasibility for vocational rehabilitation.

Medical opinions appropriately considered vocational evidence in evaluating permanent disability.

From the decision · page 7Pursuant to section 4663(c), evaluating physicians play an integral role in the determination of permanent disability. It is therefore appropriate and often necessary that evaluating physicians consider the vocational evidence as part of their determination of permanent disability, including factors such as whether applicant is feasible for vocational rehabilitation, and whether the reasons underlying applicant's non-feasibility for vocational retraining arise solely out of the present industrial injury or are multifactorial. As is noted in Guzman, supra, it is the physician that must exercise their "skill, knowledge and experience as well as other considerations" in formulating an opinion on permanent disability. (Guzman, supra, at p. 828.) Thus, vocational evidence is often relevant and appropriately considered by the reporting physician in their evaluation of issues pertaining to permanent disability. (See, e.g., Qualcomm, Inc. v. Workers' Comp. Appeals Bd. (Brown) (2019) 84 Cal. Comp. Cases 531 [2019 Cal. Wrk. Comp. LEXIS 35] (writ den.) [WCJ appropriately relied on agreed medical evaluator opinion that injured employee was precluded from gainful employment and vocational rehabilitation].)

Vocational expert Simon's opinion that applicant was precluded from return to the open labor market was persuasive and substantial evidence supporting permanent and total disability.

Defense vocational expert Westman's opinion that applicant could reenter the open labor market was found to have substantial defects and was less persuasive.