What the panel ordered
The WCJ's February 11, 2022 Findings of Fact and Award is rescinded and the matter is returned to the trial level for further proceedings and development of the record.
Applicant sought reconsideration of the Findings of Fact and Award issued on February 11, 2022, by the WCJ. The WCJ found applicant was not 100% permanently totally disabled but awarded 80% permanent partial disability. The WCJ's decision was rescinded and the matter returned to the trial level for further proceedings and record development.
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The WCJ's award of 80% permanent partial disability after apportionment was rescinded because the matter requires further development of the record, particularly regarding medical evidence on work restrictions and apportionment.
From the decision · page 1Applicant seeks reconsideration of the "Findings of Fact and Award" (F&A) issued on February 11, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant was not 100% permanently totally disabled and instead awarded 80% permanent partial disability with a corresponding life pension pursuant to the stipulations of the parties.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant failed to prove that work restrictions assigned are 100% industrial in cause because no party asked doctors that question, requiring further medical evidence.
Favours Applicant prevailed
Without medical evidence on causation of work restrictions, the matter cannot be resolved on permanent disability rating and apportionment.
From the decision · page 15Here, applicant failed to prove that the work restrictions assigned are 100% industrial because no party asked that question to any of the doctors. This requires medical evidence. As we are clarifying this issue for the first time and keeping with our duty to accomplish substantial justice, the prudent course is to return this matter to the trial level for further discovery.
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 psoriasis and dyshidrosis aggravated by industrial exposures with 30% industrial causation.
From the decision · page 3Applicant was evaluated by dermatology qualified medical evaluator (QME) Paul McKenna, M.D., who authored four reports in evidence. (Applicant's Exhibits 1 through 4.) Dr. McKenna took a history of applicant developing a skin rash diagnosed as psoriasis around December 2003. (Applicant's Exhibit 1, Report of Paul McKenna, M.D., May 2, 2005, p. 2.) Dr. McKenna noted that applicant had a history of both work stress, non-industrial work stress, and a recent use of green nitrile gloves. (Id. at pp. 9-10.) He diagnosed applicant with psoriasis and dyshidrosis, which were aggravated by industrial exposures. (Id. at p. 10.) He found 30% industrial causation. (Id. at p. 11.)
Restricted applicant to no excessive stress and no heavy lifting.
From the decision · page 3Applicant was evaluated in internal medicine by agreed medical evaluator (AME) Craig Joseph, M.D., who authored three reports in evidence. (Joint Exhibits 101 through 103.) Dr. Joseph restricted applicant to no excessive stress and no heavy lifting. (Joint Exhibit 102, Report of Craig Joseph, M.D., October 2, 2014, p. 27.)
Assigned GAF score of 55 with 45% non-industrial impairment and slight to moderate work function impairments.
From the decision · page 3Applicant was evaluated in psychology by agreed medical evaluator (AME) Richard Greenberg, M.D., who authored two reports in evidence. (Joint Exhibits 104 and 105.) Dr. Greenberg assigned applicant a GAF score of 55, of which 45% was found to be non-industrial. (Joint Exhibits 104, Report of Richard Greenberg, M.D., June 7, 2012, pp. 50-51.) He opined that applicant had slight to moderate impairment in the following work functions: ability to comprehend and follow instructions; ability to perform simple and repetitive tasks; ability to maintain work pace appropriate to given work load; ability to perform complex or varied tasks; ability to relate to other people beyond giving and receiving instructions; ability to influence
Assigned work restrictions consistent over evaluations in 2009 and 2011.
From the decision · page 4Applicant was evaluated by orthopedic agreed medical evaluator (AME) Phillip Kanter, M.D., who authored two reports in evidence. (Joint Exhibits 106 and 107.) Dr. Kanter assigned the following work restrictions:
Evaluated psoriatic arthritis, deferred work restrictions to Dr. Kanter, and provided a rating with 30% non-industrial apportionment.
From the decision · page 4Levine, M.D., who authored three reports in evidence and was deposed. (Joint Exhibits 108 through 111.) Dr. Levine evaluated applicant's psoriatic arthritis and provide a rating to it, but deferred to Dr. Kanter to address work restrictions. (Joint Exhibit 109, Report of Seymour Levine, M.D., August 26, 2011, p. 23.)
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 apportionment is not valid.
Vocational evidence may address permanent disability but cannot substitute for medical apportionment.
From the decision · page 124. `Vocational Apportionment' and Rebuttal of the PDRS under Ogilvie In 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 an apportionment determination and prescribes the standard for apportionment, and that the Labor Code makes no statutory provision for "vocational 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 such evidence may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. The Board explained that an analysis of whether there are valid sources of apportionment is still required, even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant's inability to meaningfully participate in vocational
East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213
The Combined Values Chart (CVC) may be rebutted by substantial medical evidence showing a synergistic effect of injuries on activities of daily living (ADLs).
Synergistic amplification of ADLs allows adding impairments beyond the CVC.
From the decision · page 11b. Overlapping ADLs with a Synergistic Effect The next method for rebutting the CVC was first discussed in East Bay Municipal Utility District v. Workers' Compensation Appeals Board, (Kite), where applicant was awarded permanent disability by adding the permanent disability to each hip and not by combing the disabilities as ordinarily required by the PDRS under the CVC.
What proof carried it
The evidence the panel weighed, by kind.
Vocational expert's report improperly interjected medical opinions regarding apportionment, which is not valid medical evidence.
From the decision · page 13In 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 apportionment. 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. As explained in Nunes `vocational apportionment' is not a valid concept in workers' compensation. Having failed to properly analyze apportionment, the expert's report does not constitute substantial evidence.
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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.
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