What the panel ordered
Findings and Award of November 30, 2021 rescinded; matter returned to trial level for further proceedings and decision by WCJ.
Petition for Reconsideration granted; prior Findings and Award rescinded; case returned to trial level for further proceedings and development of the record including supplemental medical and vocational reporting.
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 Board found that the vocational evidence did not meet the standards for substantial evidence to rebut the scheduled permanent disability rating and that further development of the record was necessary to properly adjudicate the issues of permanent disability and apportionment.
From the decision · page 5In Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes I), we held that Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but that the Labor Code makes no statutory provision for "vocational apportionment."
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Vocational expert's reports were internally inconsistent and lacked adequate explanation for changes in opinion regarding applicant's employability and vocational rehabilitation feasibility.
Favours Defendant prevailed
This undermined the credibility of the vocational evidence to rebut the scheduled permanent disability rating.
Applicant was working full-time for about a year after injury until termination, with pain self-reported as moderate and without medications.
Favours Defendant prevailed
This evidence contradicted the vocational expert's conclusion of permanent total disability and supported the WCJ's finding that the scheduled rating was not successfully rebutted.
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.
Assigned a permanent impairment rating using the range-of-motion method with additional impairment for sensory and motor deficits and a specific spine disorder.
From the decision · page 2The parties have engaged a qualified medical evaluator (QME), Diane Michael, D.C., whose four reports (two comprehensive evaluations and two supplemental reports) are in evidence. In her first evaluation, dated September 16, 2016, Dr. Michael defers an assessment of permanent impairment for reasons not stated. In that of October 6, 2017, the QME assigns a permanent impairment rating using the range-of-motion (ROM) method, with additional impairment for sensory and motor deficits and a specific spine disorder. In deposition testimony taken January 23, 2019, Dr. Michael explained that she believed the ROM method to be appropriate in this case because of the impact of applicant's disc herniation on the nerve roots (L5 and S1) immediately above and below that disc.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663
Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but the Labor Code makes no statutory provision for vocational apportionment.
Vocational evidence may be used to address issues relevant to the determination of permanent disability but may not substitute impermissible vocational apportionment for medical apportionment.
From the decision · page 5In Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 [2023 Cal. Wrk. Comp. LEXIS 30I] (Appeals Board en banc) (Nunes I), we held that Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, but that the Labor Code makes no statutory provision for "vocational apportionment."
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony regarding daily pain levels, depression, anxiety, functional limitations, and five years removed from the labor market.
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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.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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