ADJ931866 · June 15, 2026

The Appeals Board found that the vocational expert's opinion on permanent total disability was not supported by substantial medical evidence, particularly regarding work restrictions and pain condition. The Board granted reconsideration to further develop the record and review the merits of the petition.

From the decision · page 1Defendant seeks reconsideration of the Findings, Award, and Order issued on March 16, 2026. The workers' compensation administrative law judge (WCJ) found, in relevant part, that applicant sustained an injury to the lumbar spine, right shoulder, right wrist, ribs, thoracic spine, head, teeth, jaw (clenching), nose, right clavicle, left lung, sexual dysfunction, bowel dysfunction, urinary dysfunction, sleep, hearing, nervous system, psyche and esophagus (upper GI); and that applicant's injury caused permanent total disability of 100%.

Vocational expert relied only on orthopedic restrictions and found applicant not amenable to rehabilitation due to pain and opioid use without medical support.

Favours Defendant prevailed

Lack of medical opinion supporting vocational conclusions led to granting reconsideration to develop record further.

Found injury to low back, right shoulder, right wrist, and neck with work restrictions precluding customary work as a truck driver.

From the decision · page 2FACTS Applicant, while working as a cement truck driver on January 31, 2006, sustained injury to his lumbar spine, right shoulder, right wrist, and ribs and claimed injury to his head, jaw, teeth, nose, right clavicle, lungs, thoracic spine, hips, pelvis, knees, sexual disfunction, ankles, bowel disfunction, urinary disfunction, sleep, hearing, skin, nervous system, psyche and esophagus. There are several AMEs who have issued reports in this case. As relevant here, following is a brief summary of each. The AME in orthopedics is Jaime Contreras, M.D. Dr. Contreras issued several reports, the most recent of which is dated June 14, 2017, following his evaluation of applicant. (Joint Exh. T1.) He found that applicant sustained injury to his low back, right shoulder, right wrist, and neck. He opined that applicant had lost 50% of pre-injury capacity for lifting, bending, reaching, and grasping, as well as a 25% loss in the low back for standing, walking, and climbing and a 25% loss in the neck for sitting and standing. (Id. at p. 11.) He provided work restrictions that restricted heavy lifting, repetitive bending, prolonged standing, prolonged walking, and repetitive climbing, and pushing, pulling, grasping, and gripping with the right upper extremity. He concluded that applicant would be precluded from his customary work as a truck driver. (Id. at p.

Found whole person impairment of 14% including memory and headache issues; advised avoiding hazardous machinery or heights.

From the decision · page 212.) Ronald Kent, M.D., Ph.D., was selected as the AME in neurology. His most recent report was dated May 7, 2010 (Joint Exh. X2), but his last evaluation of applicant was March 2, 2010 (Joint Exh. X3). He found applicant was at maximum medical improvement from a neurological standpoint on May 5, 2009. (Joint Exh. X6.) He concluded that applicant had whole person impairment (WPI) of 14%, including 8% due to residual difficulty with recent memory and impairment for headaches. He also noted that, "based on the occasional incidence of dizziness or imbalance, it would be appropriate to avoid activities requiring exposure to hazardous machinery or unprotected heights." (Id. at p. 25.) His later reports did not change any of these opinions. On November 22, 2016, Dr. Kent was deposed. (Joint Exh. X1.) He was questioned about applicant's opiate use, particularly the use of Fentanyl and Percocet, in addition to several other medications. Dr. Kent opined based on counsel's hypothetical enumeration of the medications

Issued report on neuropsyche with no comment on work restrictions.

From the decision · page 3James Jennison, Ph.D., was the AME for neuropsyche. He issued one report dated May 28, 2009. (Joint Exh. Z1.) There was no comment on work restrictions.

Found impairment for lung disorder, gastritis, digestive problems, sexual dysfunction, and sleep disorder.

From the decision · page 3Stanley J. Majcher, M.D., acted as the AME in internal medicine. He last evaluated applicant on May 5, 2017. From an internal medicine standpoint, he found impairment for a lung disorder, gastritis, lower digestive problems, sexual disfunction, and a sleep disorder.

Found impairment for mastication, speech, trigeminal neuropathic disorder; provided work restrictions.

From the decision · page 3Joseph Schames, D.M.D, acted as the AME for dentistry. He evaluated applicant on October 28, 2010 (Joint Exh. Y6) and issued five reports. He found impairment for mastication, speech, trigeminal neuropathic disorder. He provided the following work restrictions:

Found hearing loss and recommended hearing aids; deferred work restrictions to orthopedics.

From the decision · page 3The parties also utilized Geoffrey Smith, M.D., as an AME in Otolaryngologist (ENT), and he last evaluated applicant on July 10, 2017. He opined that applicant would benefit from hearing aids due to hearing loss in both ears. He did not provide work restrictions and deferred to orthopedics. (Joint Exh. V2.)

Found mild depressive symptoms and opioid-related disorder; 35% of impairment caused by industrial injury; no diagnosis of pain condition.

From the decision · page 3The AME in psychiatry was David Davis, M.D., and he last evaluated applicant on October 24, 2019. (Joint Exh. W2.) He had some concerns about applicant's credibility but ultimately found that his depressive symptoms and difficulty with concentration were in the very mild range. He provided a number of diagnoses, including an opioid related disorder as well as a learning

Labor Code section 4663 requires a reporting physician to make medical determinations including apportionment; vocational evidence may address permanent disability but not medical issues.

Applied to reject vocational expert's apportionment opinion and require medical evidence.

From the decision · page 6II. In the en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (June 22, 2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] ("Nunes I"), the Appeals Board held that section 4663 requires a reporting physician to make medical determinations in a case, including determinations on the issue of apportionment. The Board further held that vocational evidence may be used to address issues relevant to the determination of permanent disability, and that vocational evidence must address apportionment, but that a vocational evaluator may not opine on issues that require expert medical evidence. The Board affirmed these holdings in Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 23 Cal. Wrk. Comp. LEXIS 46 [88 Cal.Comp.Cases 894] ("Nunes II").

Vocational expert's opinion on permanent total disability was not supported by substantial medical evidence, particularly regarding work restrictions and pain condition.