ADJ10361114 — California WCAB decision

ADJ10361114 · December 31, 2024

The Appeals Board granted defendant's petition for reconsideration, rescinded the WCJ's August 20, 2024 F&A, deferred the issue of permanent disability, and returned the matter to the trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Oakland

What the panel ordered

Defendant sought reconsideration of the WCJ's August 20, 2024 Findings, Award, and Orders (F&A) which found applicant 100% permanently totally disabled. The WCJ filed a Report and Recommendation to deny reconsideration. The Appeals Board granted reconsideration, rescinded the WCJ's F&A, deferred the permanent disability issue, and returned the matter for further development.

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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.

Permanent disability ratingDeferredleft arm · left wrist · left elbow · left hand · left shoulder · psyche · low back · trunk · legs

The Appeals Board found that the medical evidence on Combined Values Chart rebuttal was not substantial and that vocational expert opinions improperly included medical conclusions. The Board deferred the permanent disability issue for further development of the medical and vocational record.

From the decision · page 1Defendant seeks reconsideration of the "Amended Findings, Award, and Orders with Opinion on Decision" (F&A) issued on August 20, 2024, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant was 100% permanently totally disabled.

The facts that decided it

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

Dr. Strudwick's medical opinion on Combined Values Chart rebuttal was not substantial because he did not take a complete history of ADL impacts or compare psychological and physical impairments for overlap or synergy.

Favours Defendant prevailed

This led the Board to reject his opinion and defer the permanent disability issue for further medical development.

From the decision · page 11In this case, the QME's opinion on CVC rebuttal does not constitute substantial medical evidence. Dr. Strudwick did not take a complete history of the impacts of applicant's injury upon each of the ADLs. He did not then compare that with the ADLs impacted by the psychological injury to find either no overlap, or synergistic effect. Accordingly, the opinion is not substantial medical evidence and requires further development.

Vocational expert's report improperly included medical opinions on pain and synergistic effects, which is not permissible and undermines the evidence for permanent disability.

Favours Defendant prevailed

This led the Board to reject the vocational expert's conclusions and require further development of the record.

From the decision · page 11Next, applicant's vocational expert's report does not constitute substantial evidence as the evaluator has incorrectly and improperly interjected his own medical opinions into the case regarding applicant's pain and regarding the synergistic effect of applicant's injuries. A vocational evaluator does not create medical facts in a case. Vocational experts review the medical record created by the doctors and reach conclusions as to applicant's vocational feasibility based upon that record. Applicant's physical restrictions, including any perceived restrictions based upon pain, are a medical issue, which requires medical evidence. Whether applicant's ADLs overlap to create a synergistic impairment is a medical issue. If the vocational expert has cause to disagree with the medical opinions, the parties must return to the medical experts to clarify that disagreement. The Appeals Board cannot rely upon a non-medical expert to establish medical facts.

Defendant's vocational expert incorrectly assumed non-industrial back injury and based opinions on non-disability factors such as English language skills, which was rejected as improper.

Favours Applicant prevailed

This supported the applicant's position that the disability was industrial and that the defendant's vocational evidence was not substantial.

From the decision · page 11Next, defendant's vocational expert also does not constitute substantial evidence. First, the evaluator incorrectly assumed that applicant's back injury was non-industrial, when it was found industrial. Next, the expert impermissibly based her opinions upon applicant's ability to speak English, which does not appear to have been caused by any disability. We addressed this issue directly in Soormi, supra:

The rules the panel named

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

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Substantial medical evidence requires reasonable medical probability, non-speculative opinion, based on adequate examination and history, with reasoning.

The Board found Dr. Strudwick's opinion on Combined Values Chart rebuttal was not substantial medical evidence because it lacked a complete history and comparison of ADLs.

From the decision · page 11To 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).) "When the foundation of an expert's testimony is determined to be inadequate as a matter of law, we are not bound by an apparent conflict in the evidence created by his bare conclusions." (People v. Bassett (1968) 69 Cal.2d 122, 139.)

Permanent total disability can be based on medical or vocational evidence showing preclusion from work or rehabilitation due to industrial injury.

The Board outlined criteria for permanent total disability including medical work restrictions and vocational expert testimony on labor market access.

From the decision · page 8Thus, we conclude that an employee may challenge the presumptive scheduled percentage of permanent disability prescribed to an injury by showing a factual error in the calculation of a factor in the rating formula or application of the formula, the omission of medical complications aggravating the employee's disability in preparation of the rating schedule, or by demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Strudwick did not take a complete history of impacts on activities of daily living and did not compare psychological and physical impairments for overlap or synergy.

From the decision · page 11In this case, the QME's opinion on CVC rebuttal does not constitute substantial medical evidence. Dr. Strudwick did not take a complete history of the impacts of applicant's injury upon each of the ADLs. He did not then compare that with the ADLs impacted by the psychological injury to find either no overlap, or synergistic effect. Accordingly, the opinion is not substantial medical evidence and requires further development.

expert methodologyfavours Defendant prevailed

Vocational expert improperly interjected medical opinions regarding pain and synergistic effects, which is not permissible.

From the decision · page 11Next, applicant's vocational expert's report does not constitute substantial evidence as the evaluator has incorrectly and improperly interjected his own medical opinions into the case regarding applicant's pain and regarding the synergistic effect of applicant's injuries. A vocational evaluator does not create medical facts in a case. Vocational experts review the medical record created by the doctors and reach conclusions as to applicant's vocational feasibility based upon that record. Applicant's physical restrictions, including any perceived restrictions based upon pain, are a medical issue, which requires medical evidence. Whether applicant's ADLs overlap to create a synergistic impairment is a medical issue. If the vocational expert has cause to disagree with the medical opinions, the parties must return to the medical experts to clarify that disagreement. The Appeals Board cannot rely upon a non-medical expert to establish medical facts.

expert methodologyfavours Applicant prevailed

Defendant's vocational expert incorrectly assumed non-industrial back injury and based opinions on non-disability factors such as English language skills.