What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration filed by defendant after Findings and Award; WCJ report and Opinion on Decision adopted by Appeals Board panel
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 applicant's permanent disability was based on orthopedic injuries with no apportionment and pain from those injuries, entitling her to an unapportioned 100% award.
From the decision · page 9CONTENTION B: EVEN IF PERMANENTLY AND TOTALLY DISABLED APPORTIONMENT SHOULD BE APPLIED TO REDUCE THE AWARD Since the finding of the WCJ was based on the orthopedic medical reports for which there is no apportionment and the pain from those injuries the applicant is entitled to an un-apportioned award. This contention should be denied.
The applicant's vocational expert's opinion, supported by medical reports, was found substantial evidence showing vocational non-feasibility due to orthopedic injuries and pain, while the defense vocational expert's reports were not substantial evidence.
From the decision · page 8Applicant's vocational expert, Alejandro Calderon opined that the applicant's ability to compete in the open labor market continues to be "entirely eroded from an orthopedic perspective and chronic severe chronic pain symptomology, limited physical tolerances and stamina, and that her amenability to Vocational Rehabilitation Services for employment at this time remains non- feasible. (App. Ex. 5, December 2, 2021, pages 1, 2, 15, 17, 19 point 4, 21 most of page, page 22 (no apportionment to non-industrial causation; App. Ex. 6 June 9, 2023, pages 6-7 (Response)). Since his opinions are based on the reports of Dr. Thompson and Dr. Bernicker, and is limited to her limitations due to pain and the orthopedic injuries for which there is no apportionment, the applicant has met her burden on the issue of vocational feasibility.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's orthopedic medical restrictions and pain management limitations
Favours Applicant prevailed
Supported vocational expert's opinion on non-feasibility and no apportionment, leading to 100% permanent disability award
From the decision · page 7CONTENTION A: THE APPLICANT FAILED TO MEET HER BURDEN ON NON-FEASIBILITY OF VOCATIONAL REHABILITATION BECAUSE THE REPORTING OF MR. CALDERON (APPLICANT'S VOCATIONAL EXPERT) IS NOT SUBSTANTIAL EVIDENCE This contention is in error and should be denied. Dr. Jeffrey Bernicker issued a multiplicity of reports including those of March 2,2021 (Jt. Ex. 1 ), August 9, 2023 (Jt. Ex. 2); and October 23, 2023 (Jt. Ex. 3). In his March 2, 2021 report (Jt. Ex. 1 ), he found the applicant to be limited to sedentary work due to her back and left knee. He also found that the applicant had a restriction to her left upper extremity limiting her from repetitive work at or above shoulder level and lifting greater than 10 pounds below shoulder level. This report rates under the 1996 rating manual since this is a 2002 date of injury:
Defense vocational expert's reports relied on non-industrial factors and were rejected as not substantial evidence
Favours Applicant prevailed
Rejection of defense vocational evidence supported denial of apportionment and upheld 100% award
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.
Found applicant limited to sedentary work due to back and left knee, with restrictions on left upper extremity; restrictions 100% related to industrial injury; no apportionment.
His medical restrictions supported the vocational expert's opinion on non-feasibility and no apportionment.
From the decision · page 7CONTENTION A: THE APPLICANT FAILED TO MEET HER BURDEN ON NON-FEASIBILITY OF VOCATIONAL REHABILITATION BECAUSE THE REPORTING OF MR. CALDERON (APPLICANT'S VOCATIONAL EXPERT) IS NOT SUBSTANTIAL EVIDENCE This contention is in error and should be denied. Dr. Jeffrey Bernicker issued a multiplicity of reports including those of March 2,2021 (Jt. Ex. 1 ), August 9, 2023 (Jt. Ex. 2); and October 23, 2023 (Jt. Ex. 3). In his March 2, 2021 report (Jt. Ex. 1 ), he found the applicant to be limited to sedentary work due to her back and left knee. He also found that the applicant had a restriction to her left upper extremity limiting her from repetitive work at or above shoulder level and lifting greater than 10 pounds below shoulder level. This report rates under the 1996 rating manual since this is a 2002 date of injury:
Issued work restrictions of no heavy lifting or repeated bending and stooping, subsumed into sedentary work restriction; found no apportionment.
His restrictions further eroded sedentary job base and supported no apportionment.
From the decision · page 7BACK: 12. 1-70-3408-72-72 (sedentary work restriction LEFT KNEE: 2/3(14. 631-15-3408-17=17) 11 (atrophy) LEFT SHOULDER- 7. 3-5-340f-5-5 rated on no repetitive at or below shoulder level. The weight lifting is subsumed into the sedentary work restriction.
Found applicant had slight impairment in work pace and assigned 25% apportionment to non-industrial causes; overall rating 75%.
His psychiatric apportionment was rejected by the panel in favor of orthopedic-based award without apportionment.
From the decision · page 7Dr. Bernicker found the restrictions to be 100% related to the industrial injury. Furthermore, the restrictions on use of her left upper extremity erodes the number of sedentary jobs that she can do. Dr. Daniel Bresler evaluated the applicant for disability related to internal medicine issues/hernia. He issued work restrictions of no heavy lifting or repeated bending and stooping which are subsumed into the sedentary work restriction. However, these work restrictions further erode the base of sedentary jobs. Dr. Bressler found no apportionment. Dr. Robert Zink, Ph.D. was the psychologist AME. Dr. Zink found that the applicant had a GAF (Global Assessment of Functioning of 57). However, as this is a 2002 date of injury, the report was rated under the 8 categories of Function (note Dr. Zink found 25% to non-industrial causes). However he found that she had slight impairment in her ability to maintain a work pace appropriate to a given workload. The overall rating of Dr. link's report with apportionment is 75% (1.4-16-340D-13-13) = 9.75 or 10%. Dr. Blake Thompson is the applicant's pain management doctor. He added an additional restriction that the applicant needed to have a brace on her left knee because of the thigh atrophy
Added restriction for knee brace and cane; agreed with vocational expert's conclusion of non-feasibility due to pain from orthopedic injuries with no apportionment.
His opinion supported the vocational expert's findings on pain-related limitations and no apportionment.
From the decision · page 8to stabilize her leg and to use a three-point cane. He reviewed the report of Alexander Calderon, the applicant's vocational expert, and agreed with the conclusion. (Applicant's Exhibit 1-July 13, 2022, page 6; App. 2- May 3, 2022, page 1; and App. Ex. 3, Feb 10, 2022, page 6). The "pain" stems solely from the admitted orthopedic injuries she sustained for which Dr. Bernicker finds no apportionment. It is the pain that limits her concentration and ability to maintain an adequate work pace.
Opined applicant's ability to compete in labor market is entirely eroded due to orthopedic injuries and chronic pain; vocational rehabilitation non-feasible; no apportionment to non-industrial causes.
His vocational opinion was found substantial evidence supporting non-feasibility and no apportionment.
From the decision · page 8Applicant's vocational expert, Alejandro Calderon opined that the applicant's ability to compete in the open labor market continues to be "entirely eroded from an orthopedic perspective and chronic severe chronic pain symptomology, limited physical tolerances and stamina, and that her amenability to Vocational Rehabilitation Services for employment at this time remains non- feasible. (App. Ex. 5, December 2, 2021, pages 1, 2, 15, 17, 19 point 4, 21 most of page, page 22 (no apportionment to non-industrial causation; App. Ex. 6 June 9, 2023, pages 6-7 (Response)). Since his opinions are based on the reports of Dr. Thompson and Dr. Bernicker, and is limited to her limitations due to pain and the orthopedic injuries for which there is no apportionment, the applicant has met her burden on the issue of vocational feasibility.
Initially found applicant employable with vocational apportionment due to non-industrial factors; later deleted vocational apportionment but noted non-industrial factors limiting access to sedentary jobs; reports not substantial evidence.
His vocational reports were rejected as not substantial evidence due to reliance on non-industrial factors and Nunez precedent.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660
Permanent disability determined by whole person impairment under AMA Guides and PDRS, considering medical record and effect on future earning capacity (Labor Code section 4660)
Applied to assess permanent disability and vocational feasibility
From the decision · page 2Next, we turn to the merits. In our recent decision in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30] (Appeals Board en banc) (Nunes), we discussed the role of vocational evidence in workers' compensation proceedings:
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741; LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234; Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262
Vocational evidence relevant to rebut scheduled rating when injury impairs rehabilitation and future earning capacity (Nunes, LeBoeuf, Ogilvie)
Applied to evaluate vocational non-feasibility and apportionment issues
From the decision · page 2Next, we turn to the merits. In our recent decision in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30] (Appeals Board en banc) (Nunes), we discussed the role of vocational evidence in workers' compensation proceedings:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and vocational expert's opinion supported by medical reports
From the decision · page 8Applicant's vocational expert, Alejandro Calderon opined that the applicant's ability to compete in the open labor market continues to be "entirely eroded from an orthopedic perspective and chronic severe chronic pain symptomology, limited physical tolerances and stamina, and that her amenability to Vocational Rehabilitation Services for employment at this time remains non- feasible. (App. Ex. 5, December 2, 2021, pages 1, 2, 15, 17, 19 point 4, 21 most of page, page 22 (no apportionment to non-industrial causation; App. Ex. 6 June 9, 2023, pages 6-7 (Response)). Since his opinions are based on the reports of Dr. Thompson and Dr. Bernicker, and is limited to her limitations due to pain and the orthopedic injuries for which there is no apportionment, the applicant has met her burden on the issue of vocational feasibility.
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About this page
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