What the panel ordered
Petition for reconsideration granted; final decision deferred pending further review of merits and entire record.
Defendant petitioned for reconsideration of the WCJ's Findings of Fact and Award issued August 20, 2024; the WCAB granted the petition and deferred final decision pending further review.
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.
From the decision · page 1Defendant has petitioned for reconsideration of the Findings of Fact and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) in this matter on August 20, 2024. In that decision, the WCJ found that applicant, while employed on June 19, 2017 as a roofer by defendant Luke Roofing, Inc., sustained injury arising out of and in the course of his employment to his brain, head, lumbar spine, chest, thoracic cavity, right rib, cardiovascular system (in the form of hypertension), vestibular system, respiratory system, auditory system (in the form of tinnitus), visual system (in the form of light sensitivity and low vision), and psychiatric system, but did not sustain an industrial injury to his cervical spine and endocrine system (in the form of diabetes).
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Medical evaluators described applicant's cognitive impairment as mild, not severe, undermining the conclusive presumption of permanent total disability under Labor Code 4662(a)(4).
Favours Defendant prevailed
This fact challenges the basis for the WCJ's finding of permanent total disability under 4662(a)(4).
From the decision · page 4As noted above, none of the medical evaluators describe the applicant's cognitive impairment as severe. To the contrary, AME in neuropsychology Dr. Tomaszewski specifically describes the applicant having "mild neurocognitive disorder" (joint exhibit N page 30). The PQME in neurology Dr. Schreiber also found the applicant with mild cognitive impairment (joint exhibit M page 9 lines 3-6) and interpreted applicant's neuropsychology report from Dr. Ponton accordingly (joint exhibit M pages 25-26 lines 24-3). Additionally, applicant's neuropsychologist Dr. Ponton found the applicant completely independent in: housekeeping; shopping; medication management; money-management; and telephone use (applicant's Exhibit 10 page 6). Furthermore, the applicant testified similarly (8/15/2024 summary of evidence page 7 lines 19-24).
Vocational expert's evaluation was conducted while applicant was still improving psychiatrically, making it premature and not substantial evidence for permanent total disability.
Favours Defendant prevailed
This fact undermines the WCJ's reliance on vocational expert's report as a basis for permanent total disability.
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.
Opined applicant is permanently totally disabled per Labor Code 4662(a)(4) due to combination of physical, cognitive, and emotional factors; apportioned 100% of cognitive and psychological impairment to industrial injury.
WCJ relied primarily on Dr. Tomaszewski's agreed medical evaluation report dated December 27, 2022, which found permanent total disability under Labor Code 4662(a)(4).
From the decision · page 6In this case, the undersigned WCJ relied primarily on the agreed medical evaluation report of Dr. Tomaszewski dated December 27, 2022, on page 33, who wrote as follows:
Found applicant completely independent in daily activities; disagreed with permanent total disability finding under 4662(a)(4).
Disagreed with permanent total disability finding based on mild cognitive impairment and independence in daily activities.
From the decision · page 4As noted above, none of the medical evaluators describe the applicant's cognitive impairment as severe. To the contrary, AME in neuropsychology Dr. Tomaszewski specifically describes the applicant having "mild neurocognitive disorder" (joint exhibit N page 30). The PQME in neurology Dr. Schreiber also found the applicant with mild cognitive impairment (joint exhibit M page 9 lines 3-6) and interpreted applicant's neuropsychology report from Dr. Ponton accordingly (joint exhibit M pages 25-26 lines 24-3). Additionally, applicant's neuropsychologist Dr. Ponton found the applicant completely independent in: housekeeping; shopping; medication management; money-management; and telephone use (applicant's Exhibit 10 page 6). Furthermore, the applicant testified similarly (8/15/2024 summary of evidence page 7 lines 19-24).
Found applicant not permanent and stationary psychiatrically on initial evaluation; psychiatric status improved on reevaluation; did not support permanent total disability finding at time of vocational evaluation.
Vocational expert's evaluation was premature as applicant was still improving psychiatrically per Dr. Cervantes' reports.
Provided opinion on nonindustrial nature of diabetes and work restrictions; vocational expert did not review this deposition.
Vocational expert did not consider Dr. Yavari's deposition changing opinion on diabetes and work restrictions.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Permanent total disability presumption under Labor Code section 4662(a)(4) applies only when brain injury causes severe cognitive impairment.
The WCJ's finding of permanent total disability under 4662(a)(4) was questioned because medical evaluators described cognitive impairment as mild, not severe, thus the presumption may not apply.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's cognitive impairment described as mild, not severe, by multiple medical evaluators and applicant's own testimony.
From the decision · page 4As noted above, none of the medical evaluators describe the applicant's cognitive impairment as severe. To the contrary, AME in neuropsychology Dr. Tomaszewski specifically describes the applicant having "mild neurocognitive disorder" (joint exhibit N page 30). The PQME in neurology Dr. Schreiber also found the applicant with mild cognitive impairment (joint exhibit M page 9 lines 3-6) and interpreted applicant's neuropsychology report from Dr. Ponton accordingly (joint exhibit M pages 25-26 lines 24-3). Additionally, applicant's neuropsychologist Dr. Ponton found the applicant completely independent in: housekeeping; shopping; medication management; money-management; and telephone use (applicant's Exhibit 10 page 6). Furthermore, the applicant testified similarly (8/15/2024 summary of evidence page 7 lines 19-24).
Vocational expert's evaluation was premature as applicant was still improving psychiatrically at time of evaluation.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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