ADJ2876196 · March 19, 2026

The WCJ's original permanent disability award was affirmed except that the issues of permanent disability and attorney fees were deferred for further development and consideration of vocational expert evidence under the standards set forth in Nunes and Valdovinos.

From the decision · page 8For the reasons set forth above, we amend the decision to defer the issues of permanent disability and attorney fees, and the issue of a credit against temporary or permanent disability indemnity to pay attorney fees (Finding of Fact 11, Award a, b), and otherwise affirm the decision.

Applicant's testimony of severe pain, numbness, functional limitations, and need for assistance in daily activities

Favours Applicant prevailed

Supports applicant's claim of disability and need for vocational expert evidence for permanent disability determination

From the decision · page 2Applicant testified that, around June 14, 2004, he unloaded a 22-foot trailer containing items weighing 70 pounds or more over a three-day period. (Minutes of Hearing/Summary of Evidence (MOH/SOE), 01/13/2022, 8:15-16.) This caused his testicles to retract with subsequent low back and sciatica pain as well as occasional urinary hesitancy and erectile dysfunction. (MOH/SOE, 01/13/2022, 8:18-25.) His sciatica causes numbness in his right calf causing his knee to give out and him falling after his lumbar spine surgery involving metal fusion with screws that have loosened requiring future removal. (MOH/SOE, 01/13/2022, 9:4-6; 10:15-17; 11:9-10.) He has no feeling in his left knee. (MOH/SOE, 01/13/2022, 10:25.) He cannot care for himself or take a regular shower because it requires prolonged standing. (MOH/SOE, 01/13/2022, 9:9-10.) While showering, he needs assistance from his son, leans against the shower wall and limits the activity to two to three minutes, once or twice per week, sometimes less, causing prickling pain in the thigh. (MOH/SOE, 01/13/2022, 11:1-3, 12:2-9.) While applicant's surgery allows him now to climb and descend stairs (MOH/SOE, 01/13/2022, 9:20-22), he still has back pain with numbness in his legs when he drives more than 12 miles. (MOH/SOE, 01/13/2022, 10:21-22.)

QME Dr. Nehorayan's opinion that applicant is permanently totally disabled based on psychiatric and orthopedic injuries

Favours Defendant prevailed

Rejected by WCAB panel as not independently persuasive under Fitzpatrick standard

From the decision · page 5AME Dr. Markovitz did not comment on any VE reports in any of his reports. AME Dr. Berman, in his report dated June 24, 2019, after evaluating applicant, diagnosed him with status post lumbar decompression at the L4-5 and L5-S1 levels, followed by posterior spinal fusion with segmental instrumentation with probable loosening of the screws. (Joint Ex. EE, pp. 65-66.) AME Dr. Berman precluded applicant from activities falling between heavy and light work, as well as from prolonged sitting, standing and walking. (Id. at p. 67.) AME Dr. Berman apportioned 10% to nonindustrial factors. (Id. at p. 69.) AME Dr. Berman, in his supplemental report dated October 31, 2019, clarified the work restrictions to 30 minutes of sitting, standing and walking, followed by 30 minutes that would not involve prolonged activities along with 5 to 10 minute breaks in between. (Joint Ex. GG, pp. 1-2.) QME Dr. Nehorayan, in his report dated November 2, 2016, stated that, in November 2007, applicant underwent a failed L4-S1 fusion. (App. Ex. 13, p. 6.) However, applicant had depressive symptomatology prior to his failed surgery that worsened since then due to the loosened screws. (Id. at pp. 27, 29.) QME Dr. Nehorayan diagnosed applicant with a depressive disorder not otherwise

Vocational expert opinions conflicted and require further development under Nunes and Valdovinos standards

Favours neutral

Leads to deferral of permanent disability and attorney fees issues for further evidence development

Found no evidence of internal medicine problems or hernia; did not comment on vocational expert reports.

From the decision · page 5Here, AME Markovitz, in his report dated October 11, 2005, after evaluating applicant, stated, "I find no evidence of subjective or objective complaints within the area of my specialty of internal medicine nor of a hernia." (Joint Ex. AA, p. 10.)

Diagnosed status post lumbar decompression and fusion with probable loosening of screws; precluded applicant from heavy and light work and prolonged sitting, standing, walking; apportioned 10% to nonindustrial factors.

From the decision · page 5AME Dr. Markovitz did not comment on any VE reports in any of his reports. AME Dr. Berman, in his report dated June 24, 2019, after evaluating applicant, diagnosed him with status post lumbar decompression at the L4-5 and L5-S1 levels, followed by posterior spinal fusion with segmental instrumentation with probable loosening of the screws. (Joint Ex. EE, pp. 65-66.) AME Dr. Berman precluded applicant from activities falling between heavy and light work, as well as from prolonged sitting, standing and walking. (Id. at p. 67.) AME Dr. Berman apportioned 10% to nonindustrial factors. (Id. at p. 69.) AME Dr. Berman, in his supplemental report dated October 31, 2019, clarified the work restrictions to 30 minutes of sitting, standing and walking, followed by 30 minutes that would not involve prolonged activities along with 5 to 10 minute breaks in between. (Joint Ex. GG, pp. 1-2.) QME Dr. Nehorayan, in his report dated November 2, 2016, stated that, in November 2007, applicant underwent a failed L4-S1 fusion. (App. Ex. 13, p. 6.) However, applicant had depressive symptomatology prior to his failed surgery that worsened since then due to the loosened screws. (Id. at pp. 27, 29.) QME Dr. Nehorayan diagnosed applicant with a depressive disorder not otherwise

Diagnosed depressive disorder with 26% whole person impairment; attributed psychiatric injury to physical injuries; opined applicant not able to participate in vocational retraining; did not apportion disability to nonindustrial factors.

Opinion not found independently persuasive by WCAB panel.

From the decision · page 5AME Dr. Markovitz did not comment on any VE reports in any of his reports. AME Dr. Berman, in his report dated June 24, 2019, after evaluating applicant, diagnosed him with status post lumbar decompression at the L4-5 and L5-S1 levels, followed by posterior spinal fusion with segmental instrumentation with probable loosening of the screws. (Joint Ex. EE, pp. 65-66.) AME Dr. Berman precluded applicant from activities falling between heavy and light work, as well as from prolonged sitting, standing and walking. (Id. at p. 67.) AME Dr. Berman apportioned 10% to nonindustrial factors. (Id. at p. 69.) AME Dr. Berman, in his supplemental report dated October 31, 2019, clarified the work restrictions to 30 minutes of sitting, standing and walking, followed by 30 minutes that would not involve prolonged activities along with 5 to 10 minute breaks in between. (Joint Ex. GG, pp. 1-2.) QME Dr. Nehorayan, in his report dated November 2, 2016, stated that, in November 2007, applicant underwent a failed L4-S1 fusion. (App. Ex. 13, p. 6.) However, applicant had depressive symptomatology prior to his failed surgery that worsened since then due to the loosened screws. (Id. at pp. 27, 29.) QME Dr. Nehorayan diagnosed applicant with a depressive disorder not otherwise

Diagnosed major depressive disorder with 24% whole person impairment; apportioned 10% to nonindustrial factors; found psychiatric condition predominantly caused by work.

From the decision · page 6QME Dr. Friedman, in his report dated October 21, 2016, after evaluating applicant, diagnosed him with a major depressive disorder with pain and sleep disorders, present since 2006 (Id. at p. 83), predominantly caused by work and resulting in a GAF score of 54 equivalent to 24% WPI. (Def. Ex. D, at pp. 83, 86.) QME Dr. Friedman apportioned 10% permanent disability to nonindustrial factors. (Id. at p. 92.)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc); Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378

Substantial evidence must support WCAB decisions; medical opinions must be based on reasonable medical probability and adequate examination and history; opinions based on speculation or incorrect legal theories are not substantial evidence.

Applied to evaluate medical opinions and evidence in the case.

From the decision · page 3It is axiomatic that substantial evidence must support the decisions by the Appeals Board. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378 [35 Cal.Comp.Cases 525].)

Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607

Permanent total disability must be determined through impairment ratings by AMA Guides pursuant to Labor Code section 4662; no second independent path to permanent total disability under section 4662(b).

Applied to reject vocational expert opinion as sole basis for permanent total disability.

From the decision · page 3In Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680], the court concluded that the issue of whether an applicant is permanently and totally disabled must be determined through impairment ratings by application of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) pursuant to Labor Code section46602. In addition, a finding under section 4662(b), "in accordance with the fact," does not provide a second independent path to permanent total

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board enbanc)

Labor Code section 4663 requires medical apportionment determination; vocational apportionment is impermissible; vocational evidence may address permanent disability issues but cannot substitute for medical apportionment.

Applied to clarify the role of vocational evidence in permanent disability and apportionment determinations.

From the decision · page 4With respect to VE evidence, pursuant to Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board enbanc) (Nunes I), the Appeals Board held as follows:

To prove permanent total disability, applicant must show work restrictions with substantial medical evidence, vocational expert evidence that restrictions preclude rehabilitation and open labor market competition, and that restrictions are 100% industrial in cause.

Applied to outline evidentiary requirements for permanent total disability proof.

From the decision · page 5Finally, where applicant seeks to rebut the PDRS and prove permanent total disability, they must prove the following:

Applicant's testimony about pain, numbness, and functional limitations including need for assistance in showering and inability to stand for prolonged periods

From the decision · page 2Applicant testified that, around June 14, 2004, he unloaded a 22-foot trailer containing items weighing 70 pounds or more over a three-day period. (Minutes of Hearing/Summary of Evidence (MOH/SOE), 01/13/2022, 8:15-16.) This caused his testicles to retract with subsequent low back and sciatica pain as well as occasional urinary hesitancy and erectile dysfunction. (MOH/SOE, 01/13/2022, 8:18-25.) His sciatica causes numbness in his right calf causing his knee to give out and him falling after his lumbar spine surgery involving metal fusion with screws that have loosened requiring future removal. (MOH/SOE, 01/13/2022, 9:4-6; 10:15-17; 11:9-10.) He has no feeling in his left knee. (MOH/SOE, 01/13/2022, 10:25.) He cannot care for himself or take a regular shower because it requires prolonged standing. (MOH/SOE, 01/13/2022, 9:9-10.) While showering, he needs assistance from his son, leans against the shower wall and limits the activity to two to three minutes, once or twice per week, sometimes less, causing prickling pain in the thigh. (MOH/SOE, 01/13/2022, 11:1-3, 12:2-9.) While applicant's surgery allows him now to climb and descend stairs (MOH/SOE, 01/13/2022, 9:20-22), he still has back pain with numbness in his legs when he drives more than 12 miles. (MOH/SOE, 01/13/2022, 10:21-22.)