California WCABPanel decision

ADJ11672907 · August 6, 2026

The June 14, 2022 Findings and Order is rescinded and substituted with a new order finding good cause for a psyche QME panel, defendant liable for vocational expert costs, and deferring injury to psyche and new and further disability issues.

Issues decided: 3
Medical opinions weighed: 2
Authorities named: 4
District office: Salinas

What the panel ordered

Applicant sought reconsideration of the Findings and Order dated June 14, 2022, which denied injury to psyche and a psyche PQME panel, and denied defendant's liability for vocational expert costs; reconsideration was granted to further study factual and legal issues.

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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.

Reopening / new and further disabilityDeferredpsyche

The WCAB deferred the issues of injury AOE/COE to psyche and new and further disability to reopen the case for further development.

From the decision · page 126. All other issues, including injury to the psyche, as well as whether applicant has sustained new and further disability thereby establishing a right to reopen her case, are deferred.

AOE/COE

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The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Feinberg testified that CRPS can affect people in various ways and recommended psyche treatment and evaluation.

Favours Applicant prevailed

This testimony established good cause for an additional psyche QME panel to address applicant's psyche claim.

From the decision · page 7In the instant matter, there was no written agreement between the represented parties for a panel. Further, the WCJ held that applicant did not sustain industrial injury to her psyche and was not entitled to a panel to address her psyche complaints. (F&O, p. 1.) The WCJ’s rationale was that per Dr. Feinberg, “[a]pplicant has not sustained new and further disability” or additional impairment as a result of applicant’s spinal cord stimulator implant because applicant’s condition “improved” due to decreased pain. (F&O and OOD, p. 3.) We find this rationale to be problematic as Dr. Feinberg is the orthopedic AME in this case. He is not serving in the capacity of a psyche AME or PQME. Further, on the issue of CRPS, Dr. Feinberg testified that CRPS can affect people in a variety of ways depending upon each individual’s specific background. (Exhibit X, pp. 9:14- 10:19.) He therefore ultimately recommended psyche treatment as well as input from a psyche evaluator. (Id. at pp. 12:16-19, 14:14-22.) As the parties are well aware, the WCAB has a constitutional mandate to “ensure substantial justice in all cases” and may not leave matters undeveloped where additional discovery may be necessary. (Kuykendall v. Workers' Comp. Appeals Bd.

Applicant's vocational expert report was reasonably necessary given Dr. Feinberg's work restrictions and testimony.

Favours Applicant prevailed

This supported defendant's liability for costs related to the vocational expert report despite the applicant's unsuccessful claim.

From the decision · page 11Here, Dr. Feinberg testified that his original work restrictions for applicant included “sedentary work with minimum weight-bearing and allowance of use of an assistive device.” (Exhibit X, p. 13:7-9.) He further testified that applicant should avoid excessive bending, torquing her back, kneeling, and excessive twisting. (Id. at p. 13:10-20.) When questioned about whether applicant would be off task a certain percentage of the day, he ultimately deferred to a psyche evaluator but estimated that applicant would have trouble “eight hours a day, five days a week.” (Id. at pp. 13:21-14:6.) Given this additional information, it was reasonable for applicant to believe that expert reporting was necessary to determine whether the said restrictions affected her vocational prospects. As noted above, the fact that she was ultimately not successful in her efforts is not relevant for reimbursement purposes. Accordingly, we rescind the F&O and substitute it with a new F&O which finds good cause for the issuance of an additional QME panel to address applicant’s psyche claim, liability by defendant for costs related to the April 13, 2021 vocational expert report by Frank Diaz, and defers the issues of injury AOE/COE to the psyche and whether applicant sustained new and further disability thereby establishing a right to reopen her case.

The rules the panel named

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

Costa v. Hardy Diagnostics (2006) 71 Cal.Comp.Cases 1797 (Appeals Bd. en banc)

Costa v. Hardy Diagnostics (2006) 71 Cal.Comp.Cases 1797 (Appeals Bd. en banc) and Costa v. Hardy Diagnostics (2007) 72 Cal.Comp.Cases 1492 (Appeals Bd. en banc) regarding vocational expert cost liability

Applied to find defendant liable for reasonable costs of vocational expert report despite unsuccessful claim.

From the decision · page 10Lastly, applicant asserts that in accordance with the en banc cases of Costa I and Costa II, defendant is liable for applicant’s vocational expert fees. (Petition, p. 5.) In Costa II, we held that costs related to vocational evidence must be reasonable and necessary at the time they were incurred, and such determinations are made on a case-by-case basis. (Costa II, supra, at p. 1498.) We further held that as with medical-legal costs, which may be reimbursable even though the applicant is unsuccessful in his or her claim (see Subsequent Injuries

Cal. Code Regs., tit. 8, § 31.7(b)

A.D. Rule 31.7(b) regarding issuance of additional QME panel upon showing of good cause

Applied to find good cause for psyche QME panel based on Dr. Feinberg's testimony and lack of medical record development on psyche issues.

From the decision · page 124. There is good cause for an additional QME panel to address applicant’s psyche claim.

LC 5410

Labor Code section 5410 regarding reopening for new and further disability within five years

Referenced in deferring injury AOE/COE to psyche and new and further disability issues for further development.

From the decision · page 126. All other issues, including injury to the psyche, as well as whether applicant has sustained new and further disability thereby establishing a right to reopen her case, are deferred.

LC 5803

Labor Code section 5803 regarding good cause to reopen prior award

Referenced in deferring injury AOE/COE to psyche and new and further disability issues for further development.

From the decision · page 126. All other issues, including injury to the psyche, as well as whether applicant has sustained new and further disability thereby establishing a right to reopen her case, are deferred.

What proof carried it

The evidence the panel weighed, by kind.

Evidence weighed

Dr. Feinberg's testimony recommending psyche treatment and need for psyche evaluator for CRPS-related psyche issues

From the decision · page 7In the instant matter, there was no written agreement between the represented parties for a panel. Further, the WCJ held that applicant did not sustain industrial injury to her psyche and was not entitled to a panel to address her psyche complaints. (F&O, p. 1.) The WCJ’s rationale was that per Dr. Feinberg, “[a]pplicant has not sustained new and further disability” or additional impairment as a result of applicant’s spinal cord stimulator implant because applicant’s condition “improved” due to decreased pain. (F&O and OOD, p. 3.) We find this rationale to be problematic as Dr. Feinberg is the orthopedic AME in this case. He is not serving in the capacity of a psyche AME or PQME. Further, on the issue of CRPS, Dr. Feinberg testified that CRPS can affect people in a variety of ways depending upon each individual’s specific background. (Exhibit X, pp. 9:14- 10:19.) He therefore ultimately recommended psyche treatment as well as input from a psyche evaluator. (Id. at pp. 12:16-19, 14:14-22.) As the parties are well aware, the WCAB has a constitutional mandate to “ensure substantial justice in all cases” and may not leave matters undeveloped where additional discovery may be necessary. (Kuykendall v. Workers' Comp. Appeals Bd.

Evidence weighed

Applicant's vocational expert report was reasonably necessary despite unsuccessful claim

From the decision · page 11Here, Dr. Feinberg testified that his original work restrictions for applicant included “sedentary work with minimum weight-bearing and allowance of use of an assistive device.” (Exhibit X, p. 13:7-9.) He further testified that applicant should avoid excessive bending, torquing her back, kneeling, and excessive twisting. (Id. at p. 13:10-20.) When questioned about whether applicant would be off task a certain percentage of the day, he ultimately deferred to a psyche evaluator but estimated that applicant would have trouble “eight hours a day, five days a week.” (Id. at pp. 13:21-14:6.) Given this additional information, it was reasonable for applicant to believe that expert reporting was necessary to determine whether the said restrictions affected her vocational prospects. As noted above, the fact that she was ultimately not successful in her efforts is not relevant for reimbursement purposes. Accordingly, we rescind the F&O and substitute it with a new F&O which finds good cause for the issuance of an additional QME panel to address applicant’s psyche claim, liability by defendant for costs related to the April 13, 2021 vocational expert report by Frank Diaz, and defers the issues of injury AOE/COE to the psyche and whether applicant sustained new and further disability thereby establishing a right to reopen her case.

ADJ11672907 · August 6, 2026

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

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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