ADJ11073230 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision after reconsideration deferred pending further review.

Petition for Reconsideration granted by the Appeals Board, with final decision deferred pending further review of the merits and entire record.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold September 22, 2021.

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 ratingDefendant prevailedlumbar spine

The WCA found applicant's disability to be permanent and total based on vocational expert Simon's opinion that applicant was precluded from return to the open labor market, despite defense expert Westman's contrary opinion. The Appeals Board granted reconsideration to further review this finding.

From the decision · page 1Defendant Bluewater Industries, Inc. and Zurich American Insurance Company (defendant) seeks reconsideration of the December 13, 2024 Findings of Fact and Award (F&A), wherein the workers' compensation arbitrator (WCA) found that applicant, while employed as an asbestos removal worker on September 25, 2017, sustained industrial injury to his lumbar spine resulting in permanent and total disability.

The rules the panel named

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

Lab. Code, §§ 5701, 5906; Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc)

Board may develop the record when medical record is not substantial evidence or to provide due process or fully adjudicate issues.

The WCA appropriately exercised authority to develop the record and defer issue of vocational rehabilitation feasibility.

From the decision · page 8It is well-established that the Board may not leave matters undeveloped where it is clear that additional discovery is needed. (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 404 [65 Cal.Comp.Cases 264] (Kuykendall).) Accordingly, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924] (Tyler); see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261] (McClune).) In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc) (McDuffie), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence... at any time during the proceedings (citations) [but] [b]efore directing augmentation of the medical record...the WCJ or the Board must establish as a threshold matter that specific medical opinions are deficient, for example, that they are inaccurate, inconsistent or incomplete." (McDuffie, supra, at p. 141.)

Escobedo, supra; E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922

Vocational expert's opinion must detail history and evidence supporting conclusions and explain how specific conditions cause permanent disability.

The WCA reviewed vocational expert reports for substantial evidence and persuasive methodology.

From the decision · page 7The same considerations used to evaluate whether a medical expert's opinion constitutes substantial evidence are equally applicable to vocational reporting. In order to constitute substantial evidence, a vocational expert's opinion must detail the history and evidence in support of its conclusions, as well as "how and why" any specific condition or factor is causing permanent disability. (Escobedo, supra, at p. 611; see also E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922 [71 Cal. Comp. Cases 1687].)

Labor Code section 4663(c); Guzman

Evaluating physicians must consider vocational evidence in determining permanent disability, including feasibility for vocational rehabilitation.

Medical opinions appropriately considered vocational evidence in evaluating permanent disability.

From the decision · page 7Pursuant to section 4663(c), evaluating physicians play an integral role in the determination of permanent disability. It is therefore appropriate and often necessary that evaluating physicians consider the vocational evidence as part of their determination of permanent disability, including factors such as whether applicant is feasible for vocational rehabilitation, and whether the reasons underlying applicant's non-feasibility for vocational retraining arise solely out of the present industrial injury or are multifactorial. As is noted in Guzman, supra, it is the physician that must exercise their "skill, knowledge and experience as well as other considerations" in formulating an opinion on permanent disability. (Guzman, supra, at p. 828.) Thus, vocational evidence is often relevant and appropriately considered by the reporting physician in their evaluation of issues pertaining to permanent disability. (See, e.g., Qualcomm, Inc. v. Workers' Comp. Appeals Bd. (Brown) (2019) 84 Cal. Comp. Cases 531 [2019 Cal. Wrk. Comp. LEXIS 35] (writ den.) [WCJ appropriately relied on agreed medical evaluator opinion that injured employee was precluded from gainful employment and vocational rehabilitation].)

ADJ11073230 · March 24, 2025

What the panel ordered

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The facts that decided it

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