ADJ13482875 — California WCAB decision

What the panel ordered

Petition for Reconsideration is granted; final decision after reconsideration is deferred pending further review of the merits and entire record.

Applicant seeks reconsideration of the Joint Findings and Award issued on June 10, 2025 by the WCJ. The Appeals Board grants the Petition for Reconsideration and defers final decision pending further review.

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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.

Other disputed issueApplicant prevailed

The WCJ awarded 15% of the amount awarded to the applicant's former attorney in full and final satisfaction of his lien. The Appeals Board found the record was not properly developed on this issue and granted reconsideration for further proceedings.

From the decision · page 4that other than a supplemental report issued by Qualified Medical Evaluator Dr. Fujinaka at the request of the court, no significant efforts were taken to advance the case beyond the state it was in prior to the previous decision April 24, 2024. Applicant's former attorney was awarded 15% of the amount awarded in full and final satisfaction of his lien.

Permanent disability rating

The facts that decided it

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

QME Dr. Fujinaka's medical opinion was the only medical opinion in the record and provided the basis for permanent disability ratings and apportionment.

Favours Applicant prevailed

The WCJ relied on this opinion to find permanent disability percentages and apportionment, which the Appeals Board found insufficiently developed and granted reconsideration.

From the decision · page 3The applicant was deemed Permanent and Stationary on June 21, 2022 by the QME Dr. Fujinaka. (Def. Exh. A.) Dr. Fujinaka issued an 8% Whole Person Impairment for the applicant's cervical spine and 8% Whole Person Impairment for the applicant's lumbar spine. (Def. Exh. A.) Upon request from the Court, Dr. Fujinaka clarified his apportionment opinion and reported that 70% of the permanent impairment, referable to the cervical and lumbar spine, is a direct result of the specific injury that occurred on August 30, 2019, with the remaining 30% due to the subsequent aggravation on July 13, 2020. (Def. Exh. E.)

The record was not properly developed on the issues of permanent disability award, apportionment, and attorney fees to applicant's former attorney in satisfaction of his lien.

Favours Applicant prevailed

The Appeals Board granted reconsideration to allow further development and due process on these issues.

From the decision · page 7Based on our review, we are not persuaded that the record is properly developed on the issues of award of permanent disability including the 1% add-ons for pain, apportionment, or award of fees to applicant's former attorney in satisfaction of his lien. The Appeals Board has the discretionary authority to order development of the record when appropriate to provide due process or fully adjudicate the issues consistent with due process. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986]; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121§ 1122 [63 Cal.Comp.Cases 261, 264-265].)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5909

Labor Code section 5909(a) requires the Appeals Board to act on a petition for reconsideration within 60 days of transmission of the case.

The Appeals Board acted timely on the petition for reconsideration filed by the applicant.

From the decision · page 2I. Preliminarily, we note former section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

AMA Guides, 5th Edition (2001)

AMA Guides are used to provide independent assessment of whole person impairment based on objective findings.

The WCJ used the AMA Guides to assess permanent disability ratings.

From the decision · page 5III. The purpose of utilizing the AMA The American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides) is to remove the extreme variances in the reporting of physicians. The guides are utilized in order to provide independent assessment of the whole person impairment (WPI) based on objective findings so that the WPI could be verified and repeated by different physicians regardless of who sought the evaluation without bias for or against any party. Accordingly, the language of section 4660(c) provides that "the schedule...shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule." Furthermore, the language of section 4660(d) provides that the schedule shall promote consistency, uniformity, and objectivity. The AMA Guides states:

Labor Code section 5705

Defendant holds the burden of proof on apportionment of permanent disability under Labor Code section 5705.

Defendant must demonstrate reasonable medical probability for apportionment.

From the decision · page 6Defendant holds the burden of proof on apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc), Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To meet this burden, defendant "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, at p. 620.)

ADJ13482875 · September 2, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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