What the panel ordered
Findings and Award issued on October 24, 2022, rescinded; matter returned to trial level for further proceedings
Petition for Reconsideration granted to study factual and legal issues; decision after reconsideration issued rescinding prior Findings and Award and returning matter to trial level for further proceedings
This docket was decided more than once. Shown here is the latest released decision; we also hold September 11, 2019.
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 Board found that applicant failed to prove that work restrictions were 100% industrial in origin, and that vocational expert improperly gave medical opinions, thus substantial evidence was lacking to support permanent total disability and apportionment findings. The matter was remanded for further development of the record.
From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial cumulative injury which rated to 100% permanent total disability, without apportionment, based upon the reporting of applicant's vocational evaluator.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant failed to prove work restrictions were 100% industrial in origin
Favours Defendant prevailed
Without medical evidence proving industrial causation of work restrictions, applicant failed to meet burden for permanent total disability
From the decision · page 11Here, applicant failed to prove that the work restrictions assigned are 100% industrial because no party posed that question to any of the doctors. This proof requires medical evidence.
Vocational expert improperly gave medical opinions on work restrictions and apportionment
Favours Defendant prevailed
Vocational expert's medical opinions are not substantial evidence and cannot support permanent total disability or apportionment findings
From the decision · page 9In 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 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.
Assigned 2% WPI to hearing loss and work restrictions based on Almaraz-Guzman analysis.
Dr. Roven's hearing loss rating and restrictions were part of the overall disability evaluation.
From the decision · page 4For complaints to the ears, including hearing loss, applicant was evaluated by AME Alfred Roven, M.D., who authored four reports in evidence. (Joint Exhibits 11 through 14.)
Initially diagnosed hypertension rated at 9% WPI but later found no hypertension; concluded applicant could proceed with usual occupation.
Dr. Levister's medical opinions on internal complaints and impairment ratings were considered in the disability evaluation.
From the decision · page 5Applicant was evaluated for internal complaints by AME Ernest Levister, Jr., M.D., who authored three reports in evidence. (Joint Exhibits 1 through 3.)
Opined applicant could work part-time in various jobs but assigned 25% vocational apportionment based on non-industrial factors; vocational opinion on apportionment rejected as medical opinion.
Vocational expert's apportionment opinion was rejected as it constituted a medical opinion beyond vocational expertise.
From the decision · page 6Defendant retained Rebecca Montano, Ph.D., as its vocational expert, who authored two reports in evidence. (Defendant's Exhibits A and B.) Applicant tested near average across all skill sets with normal intelligence levels. (Defendant's Exhibit A, Report of Rebecca Montano, Ph.D., April 3, 2020, at pp. 50-51.)
Assigned permanent work restrictions for multiple body parts including cervical spine, shoulders, elbows, wrists, lumbar spine, left hip, and bilateral knees.
Dr. Luciano provided detailed work restrictions that were considered in the vocational feasibility analysis and permanent disability rating.
From the decision · page 3Status post left total hip replacement surgery. 17. Decreased range of motion, left hip. 18. Antalgic gait. 19. Decreased motor strength, bilateral quadriceps. 20. Crepitation, bilateral knees. (Exhibit 9, Report of AME Michael Luciano, M.D., November 3, 2020, pp. 37-38.) Dr. Luciano assigned permanent work restrictions as follows: For the cervical spine condition as diagnosed today, the patient is prophylactically precluded from heavy lifting, repetitive motion and above-shoulder-level work.
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) 23 Cal. Wrk. Comp. LEXIS 46
Labor Code section 4663 requires a reporting physician to make medical determinations including apportionment; vocational evidence may address permanent disability but not medical issues
Applied to reject vocational expert's medical opinions and require medical evidence for apportionment
From the decision · page 9In 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").
Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman) (2010) 187 Cal. App. 4th 808
Labor Code section 4664(c)(1) precludes accumulation of disability beyond 100% for any one body region; rating should be assigned to body system generating higher rating
Applied to clarify rating under section 4664(c) and remand for further development
From the decision · page 12The purpose of 4664(c) is to preclude accumulation of disability beyond 100% "with respect to any one region of the body". The overarching goal of rating permanent impairment is to achieve accuracy. (Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Almaraz-Guzman) (2010) 187 Cal. App. 4th 808, 822 [115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837].) It has consistently been held that where applicant's disability can be rated using multiple methods, applicant is entitled to the higher rating. (Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal. App. 4th 1262, 1277, 129 Cal. Rptr. 3d 704 [permitting rebuttal of the rating schedule with alternative higher rating based upon diminished future earnings]; see also, Grossmont Union High School District v. Workers' Comp. Appeals Bd. (Burns) (1997) 62 Cal. Comp. Cases 687, [1997 Cal. Wrk. Comp. LEXIS 4483] (writ denied) [establishing dual-occupational rule, which allows for higher of two ratings when applicant's occupation spans two categories]; Hartford Accident & Indemnity Company v. Workers' Comp. Appeals Bd. (Suttner) (1990) 55 Cal. Comp. Cases 127, [1990 Cal.
What proof carried it
The evidence the panel weighed, by kind.
Vocational expert improperly gave medical opinions on work restrictions and apportionment
From the decision · page 9In 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").
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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.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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