ADJ7640424 — California WCAB decision

What the panel ordered

F&A issued on October 13, 2021, rescinded; matter returned to trial level for further proceedings

Petition for Reconsideration granted to further study factual and legal issues; decision after reconsideration rescinds prior F&A and returns matter to trial level for further record development

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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 ratingRemanded

No findings of fact were made on the permanent disability rate; the WCJ did not address applicant's claim for increased rate due to state minimum wage; the matter is returned for further record development to issue appropriate findings per Hamilton.

From the decision · page 51. Applicant's permanent disability rate. Labor Code section 5313 requires a WCJ to state the "reasons or grounds upon which the determination was made." The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd.

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.

vocational_expertRejected

Concluded applicant was not capable of vocational retraining and not employable on the open labor market, partly based on personal observations of applicant's abilities, which was deemed impermissible and not substantial evidence.

Vocational expert's opinion included medical conclusions not supported by medical evidence, thus not substantial evidence for permanent total disability.

From the decision · page 7his own personal observations and beliefs as to applicant's physical ability. This is not permissible. For example, when discussing whether applicant is amenable to retraining, the vocation expert concluded as follows:

QMEPartially credited · psychology

Diagnosed Pain Disorder due to psychological and medical factors; noted chronic depression and anxiety impacting energy and motivation; findings supported vocational expert's observations of fatigue, anxiety, and pain behaviors.

Medical opinion supported psychological impact on applicant's ability to work but did not establish permanent total disability alone; vocational expert's medical conclusions were rejected.

From the decision · page 4In addition, the applicant has sustained a Pain Disorder due to both psychological factors and a general medical condition. According to Panel QME Dr. Averill, the applicant's state of chronic depression and anxiety impacts her energy and motivations on a daily basis, as does her pain complaints and functional basis. Furthermore, Dr. Averill noted that test findings include somatic preoccupation, anxiety, and rumination about her overall physical condition, which likely has caused a notable feed back of increasing psychological distress and hopelessness.

QMEGiven great weight · neurology

Provided work restrictions for sleep disorder and headaches, including occasional absenteeism for severe headaches; no specific restrictions for GI issues.

From the decision · page 3She does not require any specific work restrictions for her sleep disorder or headaches. However, if she has severe headaches that are not relieved with the medication provided, she may have to sit down or lay down to rest. Therefore, she may have to call in sick or leave work early thereby causing occasional absenteeism 3-4 times a year that should be accommodated by the patient's employer.

QMEGiven great weight · orthopedics

Provided orthopedic work restrictions limiting forward bending, twisting, and lifting/carrying at certain heights and weights; no restrictions on standing, walking, sitting, climbing, kneeling, crawling, keyboarding, grasping, pushing, or pulling.

From the decision · page 3more than 5 lbs. for more than 4 hours per day.". (Joint Exhibit 4, Report of Peter Newton, M.D., October 22, 2018, p. 21.) Applicant was not restricted from standing, walking, sitting, climbing, kneeling, crawling, keyboarding, grasping, pushing, or pulling. (Ibid.)

The rules the panel named

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

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473

Labor Code section 5313 requires WCJ to state reasons or grounds for determination and base decision on admitted evidence supported by substantial evidence.

No findings of fact were made on permanent disability rate; matter returned for further findings.

From the decision · page 51. Applicant's permanent disability rate. Labor Code section 5313 requires a WCJ to state the "reasons or grounds upon which the determination was made." The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd.

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741

Vocational evidence must not substitute for medical apportionment; medical experts must determine feasibility of vocational rehabilitation.

Vocational expert's medical conclusions rejected; record does not support permanent total disability finding; matter remanded for further development.

From the decision · page 62. Whether applicant is permanently and totally disabled. 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 Board held in relevant part that vocational evidence must address apportionment and may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment under Labor Code section 4663. (Affirmed 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"). As noted in Nunes I:

ADJ7640424 · March 25, 2024

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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