ADJ1390885 — California WCAB decision

ADJ1390885 · September 9, 2024

Findings, Award and Order of June 7, 2021 affirmed except permanent disability, apportionment, rebuttal of scheduled rating, and attorney's fees deferred and matter returned to trial level for further proceedings and new decision by WCJ.

Issues decided

Medical opinions weighed

Authorities named

District office

San Diego

What the panel ordered

Petition for reconsideration granted; decision after reconsideration issued; matter returned to trial level for further proceedings and new determination by WCJ on permanent disability, apportionment, rebuttal of scheduled rating, and attorney's fees.

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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 ratingRemandedbilateral upper extremities · psyche · GERD

The Appeals Board found unresolved issues of permanent disability and apportionment requiring further inquiry and new determination by the WCJ, deferring these issues and returning the matter to the trial level.

From the decision · page 2Defendant filed an answer. The WCJ submitted a Report and Recommendation ("Report"). We adopt and incorporate the Statement of Facts (Section II) of the WCJ's Report, as set forth below. We do not adopt or incorporate the remainder of the Report. Based on our review of the record and applicable law, including the Appeals Board's en banc decisions in Nunes v. Cal. Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 ("Nunes I") and Nunes v. Cal. Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 ("Nunes II"), we find unresolved issues of permanent disability and apportionment that require further inquiry and new determination by the WCJ. Therefore, though we will affirm the parts of the WCJ's decision that have not been challenged upon reconsideration, we will rescind the WCJ's findings related to permanent disability and apportionment and replace them with findings that defer those issues, pending further proceedings and new determination by the WCJ. The WCJ provides an overview of the relevant facts in Section II of his Report:

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Miller's medical opinion found applicant unable to return to open labor market with significant orthopedic and whole person impairment.

Favours Applicant prevailed

Supported the need to revisit permanent disability rating and vocational feasibility.

From the decision · page 4PQME Dr. Miller found that the Applicant was unable to return to the open labor market. His opinion was found to be substantial medical evidence on the issues presented to him concerning the Petitioner's claimed injuries. He found that the Petitioner had an overall orthopedic impermanent disability of 52%.

Dr. Zink's apportionment opinion on cardiovascular condition was not substantial evidence and based on outdated medical history.

Favours Applicant prevailed

Required revisiting apportionment of psychological disability and cardiovascular condition.

From the decision · page 7For several reasons, it is not clear that Dr. Zink's apportionment opinion rises to the level of substantial medical evidence. In finding 10% apportionment based on applicant's "cardiac issues," Dr. Zink ventured beyond his expertise in psychology, and as noted above the WCJ referred to no medical report establishing that applicant has sustained permanent disability due to his cardiovascular condition. Moreover, in stating that applicant's cardiovascular condition "is a significant factor which does weigh upon [his] sense of security and creates some decreased emotional resilience and contributes overall" to his psychological disability, Dr. Zink failed to describe in detail the exact nature of the apportionable disability. This means the doctor's opinion does not qualify as substantial evidence of apportionment under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc].3

Vocational experts erred in assuming validity of vocational apportionment; supplemental opinions required acknowledging Nunes decisions.

Favours neutral

Affected assessment of permanent disability and apportionment issues.

From the decision · page 8In this case, applicant retained Alejandro Calderon as his vocational expert and defendant retained Nick Corso as its vocational expert. Both experts provided an analysis of "vocational apportionment" in their reports. As noted before, in the Nunes decisions the Board disapproved "vocational apportionment," holding that although vocational evidence may be used to address issues relevant to the determination of permanent disability, the vocational apportionment may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment.

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.

QMERelied upon · pain management and internal medicine

Found applicant unable to return to open labor market with overall orthopedic permanent disability of 52% and whole person impairment of 64%.

Opinion found substantial medical evidence on claimed injuries and permanent disability issues, but orthopedic component rating needed clarification.

From the decision · page 4PQME Dr. Miller found that the Applicant was unable to return to the open labor market. His opinion was found to be substantial medical evidence on the issues presented to him concerning the Petitioner's claimed injuries. He found that the Petitioner had an overall orthopedic impermanent disability of 52%.

AMEPartially credited · psychology

Found apportionment to non-industrial factors for psychological disability, but opinion on cardiovascular apportionment was problematic and not substantial evidence.

Apportionment opinion on psyche disability was considered but found problematic; cardiovascular apportionment lacked substantial evidence.

From the decision · page 5Based upon the medical report of Dr. Zink, M.D. dated June 12, 2017, it is found that apportionment applies to the Applicant's claimed psyche injury. It is also found that the Applicant had a non-industrial cardiovascular condition that contributed to his overall claimed current level of disability as discussed above and his amenability to vocational rehabilitation but not to the strict rating of his permanent disability herein.

QMERelied upon

Provided impairment rating for GERD; reviewed vocational reports for medical basis of vocational feasibility.

Reviewed supplemental vocational reports to determine medical basis for vocational rehabilitation feasibility.

AMERejected

Removed himself as AME prior to finalization; opinion considered incomplete.

Removed himself as AME prior to finalization; opinion incomplete.

From the decision · page 2Originally, parties agreed to use Dr. Perlman as an AME for orthopedics. The Petitioner quotes from the reporting of Dr. Perlman but Dr. Perlman removed himself as the AME prior to any finalization of this claim. As such his opinion was considered incomplete on the facts and issues present at trial.

ADJ1390885 · September 9, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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