What the panel ordered
Petition for Reconsideration granted; January 16, 2024 Findings of Fact and Award rescinded; matter returned to trial level for further proceedings.
Applicant filed a Petition for Reconsideration of the January 16, 2024 Findings of Fact and Award; the WCAB granted reconsideration, rescinded the January 16, 2024 decision, and returned the matter to the trial level for further proceedings.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.
The WCAB found that the vocational expert's report did not constitute substantial evidence due to its failure to properly address medical apportionment and the inclusion of a nonindustrial lumbar spine injury. The Board granted reconsideration to allow further development of the record to properly adjudicate permanent disability and apportionment issues.
From the decision · page 1Applicant seeks reconsideration of the January 16, 2024 Findings of Fact and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as an in-home support worker during the cumulative period ending May 20, 2018, sustained industrial injury to her heart, hypertension, bilateral knees, bilateral hands, cervical spine, thoracic spine, and psyche. The WCJ found that applicant sustained permanent partial disability of 81 percent and awarded corresponding indemnity and a life pension.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Vocational expert's report premised in part on lumbar spine injury found nonindustrial by WCJ.
Favours Defendant prevailed
This undermined the vocational expert's conclusion of permanent and total disability on a purely industrial basis.
From the decision · page 7applicant's claimed lumbar spine injury, a body part which the WCJ's subsequent June 16, 2022 Findings of Fact determined to be nonindustrial. (Findings of Fact and Award, dated June 16, 2022, Findings of Fact No. 3.)
Vocational expert's report failed to consider nonindustrial apportionment identified by QMEs.
Favours Defendant prevailed
This failure led the Board to reject the vocational expert's report as substantial evidence and remand for further development.
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.
From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Janet Lord, M.D., in physical medicine, Richard Levy, M.D., in cardiovascular medicine, and QME Kathleen Longwell, Ph.D., in psychology. Applicant has also selected Scott Simon as her expert in vocational rehabilitation.
From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Janet Lord, M.D., in physical medicine, Richard Levy, M.D., in cardiovascular medicine, and QME Kathleen Longwell, Ph.D., in psychology. Applicant has also selected Scott Simon as her expert in vocational rehabilitation.
From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Janet Lord, M.D., in physical medicine, Richard Levy, M.D., in cardiovascular medicine, and QME Kathleen Longwell, Ph.D., in psychology. Applicant has also selected Scott Simon as her expert in vocational rehabilitation.
Concluded applicant is not amenable to rehabilitation or sustaining employment and sustained 100% loss of future earning capacity, labor market access and amenability, but failed to properly address medical apportionment and included nonindustrial lumbar spine injury in analysis.
Vocational report did not constitute substantial evidence due to failure to address medical apportionment and inclusion of nonindustrial lumbar spine injury.
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) 88 Cal.Comp.Cases 741
Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment; vocational evidence may be used to address permanent disability but may not substitute vocational apportionment for medical apportionment.
The Board applied this standard to reject the vocational expert's apportionment analysis and require further development of the record.
From the decision · page 4In Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes I), we held that Labor Code2 section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but that the Labor Code makes no statutory provision for "vocational apportionment."
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894
The validity of an apportionment analysis by an evaluating physician must be carefully weighed and determined by the WCJ; valid apportionment must be considered in permanent disability determinations including vocational evaluations.
The Board applied this standard to affirm the need for medical apportionment consideration and remand for further proceedings.
What proof carried it
The evidence the panel weighed, by kind.
Vocational expert's report premised in part on lumbar spine injury found nonindustrial by WCJ.
From the decision · page 7applicant's claimed lumbar spine injury, a body part which the WCJ's subsequent June 16, 2022 Findings of Fact determined to be nonindustrial. (Findings of Fact and Award, dated June 16, 2022, Findings of Fact No. 3.)
Vocational expert's report failed to consider nonindustrial apportionment identified by QMEs.
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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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