ADJ10627978 · January 30, 2025

The Board found that the vocational expert's apportionment analysis was impermissible vocational apportionment and not substantial evidence, and that the orthopedic IME's apportionment opinions were not substantial evidence. The Board affirmed the WCJ's finding of permanent and total disability without apportionment.

From the decision · page 5However, in our en banc decision in Nunes, supra, 88 Cal.Comp.Cases 741, we held that vocational evidence must address apportionment and may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. (Id. at pp. 743-744.) Examples of impermissible vocational evidence included assertions that applicant's disability is solely attributable to the current industrial injury because applicant had no prior work restrictions, or was able to adequately perform their job, or suffered no wage loss prior to the current industrial injury. (Id. at p. 754.) Accordingly, we concluded:

Two IME doctors, Dr. Richman (neurology) and Dr. Recasens (ophthalmology), opined applicant is permanently and totally disabled due to industrial injuries, supporting no apportionment.

Favours Applicant prevailed

Their opinions constituted substantial evidence relied upon by the Board to affirm the unapportioned award.

From the decision · page 14Labor Code § 4660(b)(l) states that the description of injury shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the AMA Guides, 5th ed. The IME Lawrence Richman M.D. was selected in Neurology. Dr. Richman issued three reports and his deposition was taken. Dr. Richman is an expert in MG having treated dozens of cases of MG and multiple types of patients as described in his deposition. He reviewed his 3 board certifications for the parties. (Letterhead; Joint Exh. 5, 42:15.) Applicant's history is laid out as heard in testimony. Applicant's multiple conditions and disabilities are also listed. (Joint Exh. 5, 8:24-9:5.)

Vocational expert Dr. Reyes concluded applicant is 100% occupationally disabled but his apportionment analysis was rejected as impermissible vocational apportionment.

Favours Applicant prevailed

This distinction led the Board to reject vocational apportionment and uphold the medical apportionment standards.

From the decision · page 5Here, the apportionment analysis of Dr. Reyes is predicated on impermissible "vocational apportionment," which cannot be substituted in place of valid medical apportionment. Accordingly, insofar as the vocational expert fails to consider valid medical apportionment, Dr. Reyes' analysis of apportionment is not substantial evidence. (Nunes, supra, at p. 754.)

Applicant's testimony was credible and consistent, supported by medical evidence and unrefuted by defendant, strengthening the Board's reliance on the medical opinions and vocational evidence.

Favours Applicant prevailed

Credibility of applicant's testimony was key to affirming the permanent and total disability finding.

From the decision · page 3& 7.) The WCJ's Opinion on Decision explained that applicant's testimony was consistent and credible, and conformed to the medical reporting in evidence. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various IMEs to constitute substantial evidence and further determined that pursuant to the IME and vocational reporting, that applicant was not feasible for vocational retraining. (Ibid.) In addition, the WCJ determined that defendant did not meet its burden of proving apportionment to nonindustrial or prior industrial factors, and that applicant was entitled to an unapportioned award. (Id. at p. 3.)

Provided apportionment opinion on applicant's right shoulder and low back injuries, but these opinions were found not to constitute substantial evidence.

From the decision · page 4In regard to the applicant's right shoulder and compensable consequence left shoulder, I would apportion 10% due to preexisting AC joint arthrosis and 90% to continuous trauma AOE/COE his employment. In regard to the applicant's low back, I believe that the applicant's specific injury of August 17, 2016 represented a temporary exacerbation of his prior low back injury of July 18,

Found applicant permanently and totally disabled due to myasthenia gravis and related symptoms, supporting no apportionment.

From the decision · page 14Labor Code § 4660(b)(l) states that the description of injury shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the AMA Guides, 5th ed. The IME Lawrence Richman M.D. was selected in Neurology. Dr. Richman issued three reports and his deposition was taken. Dr. Richman is an expert in MG having treated dozens of cases of MG and multiple types of patients as described in his deposition. He reviewed his 3 board certifications for the parties. (Letterhead; Joint Exh. 5, 42:15.) Applicant's history is laid out as heard in testimony. Applicant's multiple conditions and disabilities are also listed. (Joint Exh. 5, 8:24-9:5.)

Agreed applicant is permanently and totally disabled and not feasible for work due to ocular myasthenia gravis.

From the decision · page 14Separate from the neurology, the eye doctor ophthalmologist IME Marta Recasens, M.D., also has opined Applicant is permanently totally disabled (Joint Exh. 9, page 25:14.). "IME Dr. Recasens similarly found the applicant's ocular MG...'it's not feasible for him to work'... he is not able to go back to work at this point" (Joint Exh. 9, page 25:14.). It was clear from his testimony that he was quite careful about his eyesight and he did not really drive much (MOH/SOE, 10/14/21, Page 4, Line 5-6).

Concluded applicant is not feasible for vocational retraining and is 100% occupationally disabled due to myasthenia gravis, but his apportionment analysis was rejected as impermissible vocational apportionment.

Vocational apportionment cannot substitute for valid medical apportionment as per Nunes en banc decision.

From the decision · page 5Here, the apportionment analysis of Dr. Reyes is predicated on impermissible "vocational apportionment," which cannot be substituted in place of valid medical apportionment. Accordingly, insofar as the vocational expert fails to consider valid medical apportionment, Dr. Reyes' analysis of apportionment is not substantial evidence. (Nunes, supra, at p. 754.)

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

Vocational evidence must address apportionment and may not substitute impermissible "vocational apportionment" in place of valid medical apportionment.

The Board applied this standard to reject the vocational expert's apportionment analysis as not substantial evidence.

From the decision · page 5However, in our en banc decision in Nunes, supra, 88 Cal.Comp.Cases 741, we held that vocational evidence must address apportionment and may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. (Id. at pp. 743-744.) Examples of impermissible vocational evidence included assertions that applicant's disability is solely attributable to the current industrial injury because applicant had no prior work restrictions, or was able to adequately perform their job, or suffered no wage loss prior to the current industrial injury. (Id. at p. 754.) Accordingly, we concluded:

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

A medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning.

The Board applied this standard to find the orthopedic IME's apportionment opinions lacking the required substantive discussion and thus not substantial evidence.

From the decision · page 7[T]o be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.

Labor Code 4660, 4663

Labor Code 4660 and 4663 govern disability rating and apportionment requirements.

The Board relied on these statutes to evaluate the apportionment evidence and requirements.

From the decision · page 13The contention that the award of total permanent disability does not accurately consider the existence of apportionment by Dr. Hasday, orthopedist is fundamentally incorrect. Labor Code § 4660 and the 2005 schedule for rating disability are only prima facie evidence of disability. [See Labor Code § 4660(a) and (c) and Department of Corrections v. WCAB (Fitzpatrick) 83 C.C.C. 1680, 1690, 1692.] The decision relies upon the opinions of Dr. Lawrence Richman and Dr. Marta Recasens, both IME doctors. The decision should be evaluated based upon the analysis and against the requirements of Almaraz v. Environmental Recovery Service/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 and Lebeouf v. Workers' Compensation Appeals Board (1983) 48 Cal Comp. Cases 587 and the evidence relied upon to make the decision. Further, the point to the IME doctor schematic herein was to reduce litigation.

Applicant's testimony was found credible and consistent by the WCJ, supported by medical evidence and unrefuted by defendant.

From the decision · page 3& 7.) The WCJ's Opinion on Decision explained that applicant's testimony was consistent and credible, and conformed to the medical reporting in evidence. (Opinion on Decision, at p. 2.) The WCJ found the reporting of the various IMEs to constitute substantial evidence and further determined that pursuant to the IME and vocational reporting, that applicant was not feasible for vocational retraining. (Ibid.) In addition, the WCJ determined that defendant did not meet its burden of proving apportionment to nonindustrial or prior industrial factors, and that applicant was entitled to an unapportioned award. (Id. at p. 3.)

Vocational expert Dr. Antonio Reyes' reporting was found to constitute substantial vocational evidence supporting permanent and total disability.

From the decision · page 4Following our independent review of the record, we concur with the WCJ's determination that the reporting of Dr. Reyes constitutes substantial vocational evidence. (See Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741, 751 [2023 Cal. Wrk. Comp. LEXIS 46] (Appeals Bd. en banc) [ "[t]he same considerations used to evaluate whether a medical expert's opinion constitutes substantial evidence are equally applicable to vocational reporting"].) Because the vocational reporting demonstrates that applicant is "not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating," we agree with the WCJ that applicant's disability is both permanent and total. (Finding of Fact No. 6; LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587]; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624]; Applied Materials v. Workers' Comp. Appeals. Bd. (Chadburn) (2021) 64 Cal.App.5th 1042 [86 Cal.Comp.Cases 331].)

Applicant's failure to complete vocational testing was found indicative of disability, not lack of credibility or accuracy.

From the decision · page 15Overall, as was apparent at testimony, the court found Applicant to be a fully strongly credible worker so applicant's failure to finish his vocational testing is indicative of his disability not his credibility or accuracy. Defendant's allegation the vocational evidence used has inaccurate facts of mechanisms, incorrect testing scores and invalid ability assessments making the vocational evidence not substantial evidence is not persuasive. The Answer states...