What the panel ordered
Findings and Award of January 27, 2021 affirmed by the WCAB after reconsideration.
Petition for reconsideration filed by applicant challenging the WCJ's finding of 89% permanent disability and apportionment; WCAB granted reconsideration and issued decision after reconsideration affirming the WCJ's Findings and Award.
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 WCAB found that the vocational expert's opinion was not substantial evidence to rebut the medical apportionment, which was stipulated by the parties as legal and valid. The WCJ's finding of 89% permanent disability after apportionment was affirmed.
From the decision · page 1In the Findings and Award of January 27, 2021, the workers' compensation administrative law judge ("WCJ") found that applicant, while employed as an auto mechanic during the period January 28, 1987 through April 26, 2017, sustained injury arising out of and in the course of employment to his cervical spine, lumbar spine, bilateral hips, bilateral hands, bilateral wrists, hypertension, upper gastrointestinal system, psyche, headaches, and hearing loss, causing permanent disability of 89%. The WCJ issued this finding of 89% permanent disability after accounting for apportionment to non-industrial factors, based on the WCJ's accompanying finding that there is "legal and valid apportionment of the impairments to applicant's lumbar spine, cervical spine, hypertension, upper gastrointestinal system, and headaches."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Parties stipulated that the medical apportionment by Drs. Heskiaoff, Hirsch, and Fink was legal and valid.
Favours Defendant prevailed
This stipulation established the validity of medical apportionment, which the WCAB relied upon to affirm the 89% permanent disability rating after apportionment.
From the decision · page 5At the time of trial the parties stipulated that the apportionment of applicant's cervical spine and lumbar spine disability as outlined by Agreed Medical Evaluator David Heskiaoff, M.D., the apportionment of applicant's blood pressure and upper gastrointestinal disability as outlined by Agreed Medical Evaluator, Jeffrey A. Hirsch, M.D., and the apportionment of applicant's headaches as outlined by Panel Qualified Medical Evaluator Ezekiel Fink, M.D., was legal and valid apportionment. (See MOH/SOE dated 8/26/2020, page 3, line 1 through page 4, line 5.) A Findings and Award issued on January 27, 2021 finding, inter alia, that applicant's injury caused permanent disability of 89% after legal and valid apportionment of applicant's lumbar spine, cervical spine, hypertension, upper gastrointestinal system, and headache disabilities. Applicant's timely verified petition for reconsideration followed.
Vocational expert Enrique Vega's report omitted significant medical history of nonindustrial motor vehicle accident and subsequent surgeries.
Favours Defendant prevailed
This omission undermined the persuasiveness of the vocational expert's opinion and supported reliance on medical apportionment evidence.
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.
Provided apportionment of applicant's cervical spine and lumbar spine disability, which was stipulated as legal and valid.
Parties stipulated to the validity of his apportionment.
From the decision · page 5At the time of trial the parties stipulated that the apportionment of applicant's cervical spine and lumbar spine disability as outlined by Agreed Medical Evaluator David Heskiaoff, M.D., the apportionment of applicant's blood pressure and upper gastrointestinal disability as outlined by Agreed Medical Evaluator, Jeffrey A. Hirsch, M.D., and the apportionment of applicant's headaches as outlined by Panel Qualified Medical Evaluator Ezekiel Fink, M.D., was legal and valid apportionment. (See MOH/SOE dated 8/26/2020, page 3, line 1 through page 4, line 5.) A Findings and Award issued on January 27, 2021 finding, inter alia, that applicant's injury caused permanent disability of 89% after legal and valid apportionment of applicant's lumbar spine, cervical spine, hypertension, upper gastrointestinal system, and headache disabilities. Applicant's timely verified petition for reconsideration followed.
Provided apportionment of applicant's blood pressure and upper gastrointestinal disability, which was stipulated as legal and valid.
Parties stipulated to the validity of his apportionment.
From the decision · page 5At the time of trial the parties stipulated that the apportionment of applicant's cervical spine and lumbar spine disability as outlined by Agreed Medical Evaluator David Heskiaoff, M.D., the apportionment of applicant's blood pressure and upper gastrointestinal disability as outlined by Agreed Medical Evaluator, Jeffrey A. Hirsch, M.D., and the apportionment of applicant's headaches as outlined by Panel Qualified Medical Evaluator Ezekiel Fink, M.D., was legal and valid apportionment. (See MOH/SOE dated 8/26/2020, page 3, line 1 through page 4, line 5.) A Findings and Award issued on January 27, 2021 finding, inter alia, that applicant's injury caused permanent disability of 89% after legal and valid apportionment of applicant's lumbar spine, cervical spine, hypertension, upper gastrointestinal system, and headache disabilities. Applicant's timely verified petition for reconsideration followed.
Provided apportionment of applicant's headaches, which was stipulated as legal and valid.
Parties stipulated to the validity of his apportionment.
From the decision · page 5At the time of trial the parties stipulated that the apportionment of applicant's cervical spine and lumbar spine disability as outlined by Agreed Medical Evaluator David Heskiaoff, M.D., the apportionment of applicant's blood pressure and upper gastrointestinal disability as outlined by Agreed Medical Evaluator, Jeffrey A. Hirsch, M.D., and the apportionment of applicant's headaches as outlined by Panel Qualified Medical Evaluator Ezekiel Fink, M.D., was legal and valid apportionment. (See MOH/SOE dated 8/26/2020, page 3, line 1 through page 4, line 5.) A Findings and Award issued on January 27, 2021 finding, inter alia, that applicant's injury caused permanent disability of 89% after legal and valid apportionment of applicant's lumbar spine, cervical spine, hypertension, upper gastrointestinal system, and headache disabilities. Applicant's timely verified petition for reconsideration followed.
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) 2023 Cal. Wrk. Comp. LEXIS 30 (88 Cal.Comp.Cases 741) [en banc]
Vocational evidence cannot substitute for valid medical apportionment; medical apportionment must be determined based on substantial medical evidence.
The WCAB applied this standard to reject the vocational expert's opinion as insufficient to rebut medical apportionment.
From the decision · page 2Defendant filed an answer. The WCJ submitted a Report and Recommendation ("Report"). We have considered the allegations of applicant's petition for reconsideration and the contents of the WCJ's Report with respect thereto. Based on our review of the record, and for the reasons stated below and in the WCJ's Report, which we adopt and incorporate to the extent set forth in the attachment to this opinion, we will affirm the Findings and Award of January 27, 2021. We further note that the WCJ's decision is consistent with Nunes v. State of California, Dept. of Motor Vehicles (2023) 2023 Cal. Wrk. Comp. LEXIS 30 (88 Cal.Comp.Cases 741) [en banc] ("Nunes I"). Therein the Appeals Board held 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.
What proof carried it
The evidence the panel weighed, by kind.
Vocational expert Enrique Vega's report omitted significant medical history of nonindustrial motor vehicle accident and subsequent surgeries, undermining its persuasiveness.
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About this page
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