ADJ13594888 · April 13, 2026

Applicant's medical evidence and vocational evidence support a finding of permanent total disability, contrary to the arbitrator's original finding of permanent partial disability. The Board found the work restrictions assigned by Dr. Henry to be substantial medical evidence and credited the vocational expert's opinion that applicant cannot compete in the open labor market.

From the decision · page 1Applicant seeks reconsideration of the "Third Amended Arbitrator's Findings and Award" (F&A) issued on January 30, 2026, by the Ironworkers Workers' Compensation Alternative Dispute Resolution Program arbitrator (WCA).1 The arbitrator found, in pertinent part, that applicant sustained an industrial cumulative injury through the period ending on October 1, 2017, to his neck, thoracic spine, lumbar spine, bilateral shoulders, bilateral upper extremities, bilateral hands, bilateral wrists, bilateral knees, bilateral feet, bilateral ankles, and psyche. The arbitrator further found that applicant's injury caused applicant to sustain 94% permanent partial disability and that 100% of applicant's disability was industrially caused, without apportionment. The arbitrator found that applicant was amenable to vocational rehabilitation and that he could compete in the open labor market, and thus, applicant failed to rebut the Permanent Disability Ratings Schedule (PDRS) and was not permanently totally disabled.

Applicant sustained an industrial cumulative injury to multiple body parts including neck, spine, shoulders, upper extremities, hands, wrists, knees, feet, ankles, and psyche ending October 1, 2017.

Favours Applicant prevailed

This establishes the scope of injury and basis for disability claims.

From the decision · page 1Applicant seeks reconsideration of the "Third Amended Arbitrator's Findings and Award" (F&A) issued on January 30, 2026, by the Ironworkers Workers' Compensation Alternative Dispute Resolution Program arbitrator (WCA).1 The arbitrator found, in pertinent part, that applicant sustained an industrial cumulative injury through the period ending on October 1, 2017, to his neck, thoracic spine, lumbar spine, bilateral shoulders, bilateral upper extremities, bilateral hands, bilateral wrists, bilateral knees, bilateral feet, bilateral ankles, and psyche. The arbitrator further found that applicant's injury caused applicant to sustain 94% permanent partial disability and that 100% of applicant's disability was industrially caused, without apportionment. The arbitrator found that applicant was amenable to vocational rehabilitation and that he could compete in the open labor market, and thus, applicant failed to rebut the Permanent Disability Ratings Schedule (PDRS) and was not permanently totally disabled.

Dr. Henry assigned work restrictions limiting physical activities to 1-2 hours per day and lifting/carrying no more than 10 pounds for 1-2 hours per day.

Favours Applicant prevailed

These restrictions support the finding that applicant is precluded from returning to work.

From the decision · page 5Dr. Henry opined that based upon the history of job duties taken, the cause of applicant's injuries and impairments were 100% industrial from working as an ironworker for over 20 years. (Id. at pp. 13-15.) Dr. Henry assigned work restrictions as follows: can stand, walk, sit, bend, squat, climb, twist, reach, crawl, drive, grasp, and push or pull up to 1 to 2 hours per day maximum. (Id. at p. 15.) Dr. Henry further limited applicant lifting and carrying no more than 10 pounds for more than 1 to 2 hours per day. (Id. at p. 16.)

Applicant's vocational expert found applicant not amenable to vocational rehabilitation and unable to compete in the open labor market due to work restrictions.

Favours Applicant prevailed

Vocational evidence supports permanent total disability finding.

From the decision · page 18Here, applicant's vocational expert conducted vocational testing, examined applicant, reviewed the work restrictions assigned by the medical doctors, and found that applicant was not feasible for vocational rehabilitation and could not compete on the open labor market. The opinion of applicant's expert appears well-reasoned and substantial. To the extent that applicant was filmed on subrosa, the medical doctors reviewed the subrosa, which did not impact their decision. No issue was raised to suggest that the doctors' reviews were inaccurate.

Medical experts reviewed subrosa video showing applicant walking and jogging; defense expert questioned applicant's Global Assessment of Functioning (GAF) score based on video.

Favours Defendant prevailed

Subrosa video evidence was considered but did not outweigh medical and vocational evidence supporting disability.

From the decision · page 23DISSENTING OPINION OF COMMISSIONER JOS H RAZO While I agree with many of the points discussed in the majority opinion, I dissent because the current record does not constitute substantial evidence and thus, it does not support an award of permanent total disability. I agree that it is not within the province of the trier of fact to interject their own opinion as to medical limitations seen on subrosa video. However, here I do not see this as happening. Instead, it appears that the evaluators have not adequately explained the work limitations imposed upon applicant given the contents of the videos. For example, the videos depict applicant jogging recreationally. The entirety of Dr. Henry's analysis as to the videos is as follows: In reviewing the surveillance videos, they show the applicant walking and briefly walking/jogging and wearing a knee brace. the applicant goes with his wife at his own pace. The rest of the videos show the applicant performing ADLs, which would be expected with his diagnosis and do not change any of my prior opinions.

Opined that applicant's injuries and impairments were 100% industrial and assigned work restrictions limiting standing, walking, sitting, bending, squatting, climbing, twisting, reaching, crawling, driving, grasping, pushing or pulling to 1-2 hours per day and lifting/carrying no more than 10 pounds for 1-2 hours per day.

Dr. Henry took an adequate history, examined applicant, and set forth detailed reasoning for work restrictions precluding return to work.

From the decision · page 5Dr. Henry opined that based upon the history of job duties taken, the cause of applicant's injuries and impairments were 100% industrial from working as an ironworker for over 20 years. (Id. at pp. 13-15.) Dr. Henry assigned work restrictions as follows: can stand, walk, sit, bend, squat, climb, twist, reach, crawl, drive, grasp, and push or pull up to 1 to 2 hours per day maximum. (Id. at p. 15.) Dr. Henry further limited applicant lifting and carrying no more than 10 pounds for more than 1 to 2 hours per day. (Id. at p. 16.)

Diagnosed cervical spinal stenosis and severe ongoing left carpal tunnel syndrome; found applicant could not return to prior occupation but did not discuss work restrictions.

From the decision · page 5Shorr diagnosed applicant with multiple issues including cervical spinal stenosis and severe ongoing left carpal tunnel syndrome per EMG results. (Applicant's Exhibit 2, Report of Robert Shorr, M.D., September 11, 2019, p. 30.)

Reported applicant's psychological complaints including depression, anxiety, social isolation, and hopelessness.

From the decision · page 5Dr. Kirz took a history of psychological complaints as follows: the applicant became tearful when questioned about his mood. He described his mood as extremely depressed and anxious. He feels worthless because of his inability to work or contribute financially. He has no interest or motivation to do anything. He tends to be irritable with others and isolates himself socially. He denied suicidal thoughts, but feels hopeless about his situation.

Opinions often conclusory and incomplete; final opinion on work restrictions lacked specifics and did not constitute substantial medical evidence.

Opinions were incomplete and lacked explanation, thus not substantial evidence.

From the decision · page 18Dr. Xeller's opinions are often conclusory, without any explanation. Dr. Xeller's final opinion on work restrictions included a restriction on maximum lifting without stating any weight limit. (Defendant's Exhibit A, Report of Charles Xeller, M.D., November 1, 2023, p. 3, ["Based on my looking at that surveillance video, he can work a light duty job. He has some restrictions on maximum lifting and repetition of hand motions."].) Dr. Xeller states that applicant has limitations to repetitive hand motion without stating what those limitations are. Dr. Xeller's opinions are incomplete, and thus they do not constitute substantial medical evidence.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

Applied to evaluate the substantiality of medical opinions in this case.

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.)

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473 (Appeals Board en banc)

Labor Code section 5313 requires a WCJ to state reasons or grounds for determination, enabling parties and the Board to ascertain basis for decision.

Applied to require the arbitrator to state reasons for decision based on admitted evidence.

From the decision · page 10II. 1. Errors in the arbitrator's opinion Before addressing the issue of permanent total disability, we would first note that multiple errors exist in the opinion in this matter. Pursuant to section 5272, arbitrators generally have the same duties and responsibilities as a workers' compensation judge (WCJ). Section 5313 requires a WCJ to state the "reasons or grounds upon which the determination was made." The WCJ's opinion on decision "enables the parties, and the Board if reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial evidence. (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].) As required by section 5313 and explained in Hamilton, "the WCJ is charged with the responsibility of referring to the evidence in

Labor Code section 4663 requires a physician to make an apportionment determination of permanent disability caused by industrial injury versus other factors.

Applied to require apportionment determination in medical reports.

From the decision · page 16(c) In order for a physician's report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

Subrosa video showing applicant walking and jogging recreationally, reviewed by medical experts.

From the decision · page 23DISSENTING OPINION OF COMMISSIONER JOS H RAZO While I agree with many of the points discussed in the majority opinion, I dissent because the current record does not constitute substantial evidence and thus, it does not support an award of permanent total disability. I agree that it is not within the province of the trier of fact to interject their own opinion as to medical limitations seen on subrosa video. However, here I do not see this as happening. Instead, it appears that the evaluators have not adequately explained the work limitations imposed upon applicant given the contents of the videos. For example, the videos depict applicant jogging recreationally. The entirety of Dr. Henry's analysis as to the videos is as follows: In reviewing the surveillance videos, they show the applicant walking and briefly walking/jogging and wearing a knee brace. the applicant goes with his wife at his own pace. The rest of the videos show the applicant performing ADLs, which would be expected with his diagnosis and do not change any of my prior opinions.

Applicant's vocational expert's testing and opinion that applicant is not amenable to vocational rehabilitation and cannot compete in the open labor market due to work restrictions.

From the decision · page 18Here, applicant's vocational expert conducted vocational testing, examined applicant, reviewed the work restrictions assigned by the medical doctors, and found that applicant was not feasible for vocational rehabilitation and could not compete on the open labor market. The opinion of applicant's expert appears well-reasoned and substantial. To the extent that applicant was filmed on subrosa, the medical doctors reviewed the subrosa, which did not impact their decision. No issue was raised to suggest that the doctors' reviews were inaccurate.