What the panel ordered
Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.
Applicant petitioned for reconsideration of the Findings and Award issued by the WCJ on March 20, 2024, which found 92% permanent disability. The WCJ recommended denial of the petition. The Appeals Board granted reconsideration 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.
The WCJ found 92% permanent disability based on the medical evidence but the Appeals Board granted reconsideration to further review the merits and evidence including the incomplete medical record and stipulation not to develop further.
From the decision · page 1Applicant has petitioned for reconsideration of the Findings and Award (F&A) issued by the workers' compensation administrative law judge (WCJ) in this matter on March 20, 2024. In that decision, the WCJ found that the applicant sustained industrial injury arising out of and in the course of employment on May 31, 2021 to his neck, causing permanent disability of 92%, and awarded temporary total disability, permanent disability, future medical care, and attorney fees of 12% of the permanent disability and life pension awarded.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The medical record was incomplete due to the parties' stipulation not to develop further the record for ratings on urinary and fecal incontinence and sexual dysfunction.
Favours Defendant prevailed
This incomplete record forced the WCJ to choose between 92% and 100% disability without full evidence, impacting the disability rating outcome.
From the decision · page 5The first issue to discuss is an issue not addressed by the Petition for Reconsideration. In this case when asked to develop the record by obtaining medical reports to obtain ratings for the urinary and fecal incontinence and for sexual dysfunction, the parties chose to stipulate not to develop the record and requested that the undersigned resubmit the case on the current record. This appears to be a binding stipulation, which means that the undersigned was then required to proceed under the burden of proof rule in Labor Code § 3202.5 without developing the record as recommended by the Panel QME, Dr. Narvi. Thus, the undersigned was forced to choose between 92 % disability and 100% disability with each side seeming confident in the evidence supporting their position. Both sides were against developing the record when it seemed plain to the undersigned that the truth lies somewhere in-between.
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.
Treating physician whose medical evidence was cited by applicant to support 100% permanent total disability.
Applicant cited Dr. Nguyen's evidence in petition for reconsideration to argue for 100% permanent total disability.
From the decision · page 3On April 9, 2024, the applicant filed a Petition for Reconsideration alleging that the WCJ erred in failing to find the applicant 100% permanently totally disabled based upon the existing medical evidence of applicant's treating physician, Ha Nguyen, M.D., the panel Qualified Medical
Found 92% permanent disability based on cervical spine impairment and corticospinal tract impairments but noted report was incomplete due to deferral of ratings for sexual dysfunction and incontinence to specialists.
Report formed the basis for the WCJ's 92% disability finding but was incomplete due to deferral to specialists for certain conditions.
From the decision · page 3On March 20, 2024, the WCJ issued and served his Findings and Award, in which he found, in relevant part, that applicant sustained industrial injury to his neck, awarding temporary disability, permanent disability of 92%, further medical treatment, and attorney fees of 12%. The Opinion on Decision indicated that the disability was based upon the reporting and deposition of Steven Narvy, M.D., the orthopedic QME in this case.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3202.5
Burden of proof under Labor Code section 3202.5
The WCJ applied the burden of proof rule in determining the permanent disability rating based on the incomplete record and stipulation not to develop further.
From the decision · page 5The first issue to discuss is an issue not addressed by the Petition for Reconsideration. In this case when asked to develop the record by obtaining medical reports to obtain ratings for the urinary and fecal incontinence and for sexual dysfunction, the parties chose to stipulate not to develop the record and requested that the undersigned resubmit the case on the current record. This appears to be a binding stipulation, which means that the undersigned was then required to proceed under the burden of proof rule in Labor Code § 3202.5 without developing the record as recommended by the Panel QME, Dr. Narvi. Thus, the undersigned was forced to choose between 92 % disability and 100% disability with each side seeming confident in the evidence supporting their position. Both sides were against developing the record when it seemed plain to the undersigned that the truth lies somewhere in-between.
What proof carried it
The evidence the panel weighed, by kind.
Parties stipulated not to develop the medical record further despite incomplete evidence on incontinence and sexual dysfunction, impacting the disability rating determination.
From the decision · page 5The first issue to discuss is an issue not addressed by the Petition for Reconsideration. In this case when asked to develop the record by obtaining medical reports to obtain ratings for the urinary and fecal incontinence and for sexual dysfunction, the parties chose to stipulate not to develop the record and requested that the undersigned resubmit the case on the current record. This appears to be a binding stipulation, which means that the undersigned was then required to proceed under the burden of proof rule in Labor Code § 3202.5 without developing the record as recommended by the Panel QME, Dr. Narvi. Thus, the undersigned was forced to choose between 92 % disability and 100% disability with each side seeming confident in the evidence supporting their position. Both sides were against developing the record when it seemed plain to the undersigned that the truth lies somewhere in-between.
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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.
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