ADJ13935939 · August 21, 2026

Defendant failed to exercise due diligence to obtain a defense vocational evaluation prior to the Mandatory Settlement Conference, and the record was found complete with substantial medical and vocational evidence supporting applicant's permanent and total disability.

From the decision · page 8Vega and the MSC, and there is no indication defendant made any efforts to secure rebuttal evidence during that time. Further, to the extent that defendant asserts that the existing record is incomplete, we agree with the following statements made by the WCJ in her Report: Defendant’s contention that the record was incomplete is disingenuous. The decision considered the substantial medical evidence, which was based on reasonable medical probability, of the two Agreed Medical Evaluators, two Panel Qualified Medical Evaluators, and a Primary Treating Physician. In total there were 42 medical reports/depositions. In addition, there was a vocational rehabilitation expert report and credible testimony from Applicant, which included a full cross examination performed by Defendant. The fact that Defendant failed to exercise due diligence and procure rebuttal evidence does not make the record incomplete or require development of the record for rebuttal, particularly when Defendant had almost 2 years to obtain rebuttal evidence and failed to do so.

Defendant failed to retain a defense vocational expert and produce a report prior to the Mandatory Settlement Conference held on November 4, 2025, despite having nearly two years since applicant's vocational evaluation in December 2023.

Favours Applicant prevailed

This failure demonstrated lack of due diligence required under Labor Code section 5502(d)(3), leading to denial of defendant's petition for reconsideration.

From the decision · page 8Vega and the MSC, and there is no indication defendant made any efforts to secure rebuttal evidence during that time. Further, to the extent that defendant asserts that the existing record is incomplete, we agree with the following statements made by the WCJ in her Report: Defendant’s contention that the record was incomplete is disingenuous. The decision considered the substantial medical evidence, which was based on reasonable medical probability, of the two Agreed Medical Evaluators, two Panel Qualified Medical Evaluators, and a Primary Treating Physician. In total there were 42 medical reports/depositions. In addition, there was a vocational rehabilitation expert report and credible testimony from Applicant, which included a full cross examination performed by Defendant. The fact that Defendant failed to exercise due diligence and procure rebuttal evidence does not make the record incomplete or require development of the record for rebuttal, particularly when Defendant had almost 2 years to obtain rebuttal evidence and failed to do so.

The record was found complete with substantial medical evidence from multiple AMEs and PQMEs, a vocational rehabilitation expert report, and credible applicant testimony with full cross examination by defendant.

Favours Applicant prevailed

The completeness and credibility of the record negated defendant's claim of incomplete evidence and supported the WCJ's findings of 100% permanent and total disability.

From the decision · page 8Vega and the MSC, and there is no indication defendant made any efforts to secure rebuttal evidence during that time. Further, to the extent that defendant asserts that the existing record is incomplete, we agree with the following statements made by the WCJ in her Report: Defendant’s contention that the record was incomplete is disingenuous. The decision considered the substantial medical evidence, which was based on reasonable medical probability, of the two Agreed Medical Evaluators, two Panel Qualified Medical Evaluators, and a Primary Treating Physician. In total there were 42 medical reports/depositions. In addition, there was a vocational rehabilitation expert report and credible testimony from Applicant, which included a full cross examination performed by Defendant. The fact that Defendant failed to exercise due diligence and procure rebuttal evidence does not make the record incomplete or require development of the record for rebuttal, particularly when Defendant had almost 2 years to obtain rebuttal evidence and failed to do so.

Applicant sustained 6% WPI due to cognitive disorder 100% attributable to work; later reports noted 30% WPI with 60% due to industrial post-concussion syndrome and other factors.

From the decision · page 24.) In a report dated December 19, 2021, he noted an additional three percent (3%) WPI for pain related to the post trauma headaches and 3% WPI for trigeminal pain, all 100% attributable to the work injury. (Joint Exhibit 3, p. 3.) In his report dated April 10, 2025, “from a neurological perspective, these systems are different per Vigil and are synergistic. As such, the impairment ratings neurologically should be additive.” (Joint Exhibit 10, p. 2.) Neuro-psyche AME, Dr. Thaler also evaluated applicant on multiple occasions and issued various reports from 2022 – 2024. In his report dated January 7, 2022, he indicated that applicant sustained a 6% WPI due to cognitive disorder of which 100% is attributable to work. (Joint Exhibit 12, p. 13.) In his report dated February 6, 2023, he noted that applicant had a GAF score of fifty (50) which corresponds to a thirty percent (30%) WPI of which sixty percent (60%) was due to industrially related post-concussion syndrome, ten percent (10%) to pain secondary to the

Applicant reached MMI/P&S status with 6% WPI for posttraumatic head syndrome, 7% WPI for dizziness, and 1% WPI for post trauma headaches, all 100% attributable to work injury.

From the decision · page 2Applicant filed an Application for Adjudication of Claim (Application) alleging that while employed by defendant on November 10, 2020, he sustained injury AOE/COE to the jaw, teeth, scalp, head, back and nervous system. Applicant later filed an amended Application adding the brain, ears, psyche, and sleep disorder. Applicant sought treatment with Soheil Aval, M.D. and the parties proceeded with discovery, retaining neurology Agreed Medical Evaluator (AME), Kenneth Nudleman, M.D., neuro-psyche AME, Nicholas Thaler, Ph.D, internal Panel Qualified Medical Evaluator (PQME), Keyvan Yousefi, M.D., and otolaryngology PQME, Steven Burres, M.D. Applicant also retained VE, Enrique Vega. Defendant did not retain their own VE. Dr. Nudleman evaluated applicant on several occasions and issued numerous reports from 2021 – 2025. In a report dated August 29, 2021, he indicated that applicant reached maximum medical improvement/permanent and stationary (MMI/P&S) status as of May 19, 2021 with six percent (6%) whole person impairment (WPI) relative to applicant’s posttraumatic head syndrome, seven percent (7%) WPI for dizziness, and one percent (1%) WPI for post trauma headaches, all of which were 100% attributable to the work injury. (Joint Exhibit 2, p.

Applicant had 7.5% impairment to right ear for monaural hearing loss, 0.6% impairment for binaural hearing loss, and 13% WPI for tinnitus, all 100% attributable to work.

From the decision · page 3orthopedic work injury, 10% to weight gain, 10% to poor sleep and apnea, five percent (5%) to lack of work post injury and 5% to the workers’ compensation system. (Joint Exhibit 13, p. 13.) In his report dated February 21, 2023, he noted that “based upon substantial evidence…Kite is not indicated for [applicant’s] cognitive or psychological disability, as well as how his overall disability might relate to his sleep issues or headaches, as these all overlap in nature. Kite is indicated for his neuropsychological disability as a whole and his orthopedic, cardiovascular, vestibular, and hearing disabilities as these are distinct disorders that synergize to result in rather substantial disability[.]” (Joint Exhibit 14, p. 3.) Otolaryngology PQME, Dr. Burres, evaluated applicant on March 3, 2022 and issued a report on the same date as well as a supplemental report dated June 8, 2022. In his June 8, 2022 report, Dr. Burres indicated that applicant had a 7.5% impairment to the right ear for loss of monaural hearing, 0.6% impairment for both ears for loss of binaural hearing, and thirteen percent (13%) WPI for tinnitus, all of which were 100% attributable to work. (Joint Exhibit 22, pp. 4-5.) Internal PQME, Dr.

Applicant sustained 6% WPI due to hypertensive cardiovascular disease, with 25% industrial causation from Ibuprofen intake and 25% from stress and psyche factors.

Labor Code section 5903(d)

Petition for reconsideration under Labor Code section 5903(d) for newly discovered evidence.

Defendant's request to rescind the FA&O and reopen discovery treated as a request under this section.

From the decision · page 6Turning now to the merits of the Petition, defendant avers that they were denied their due process rights when they were prevented from proceeding with a defense vocational evaluation and report. We note that subdivision (d) of section 5903 includes as a basis for a petition for

Labor Code section 5502(d)(3)

Requirement to disclose evidence prior to Mandatory Settlement Conference under Labor Code section 5502(d)(3).

Evidence not disclosed or obtained after MSC is inadmissible unless due diligence is shown.

From the decision · page 7reconsideration “[t]hat the petitioner has discovered new evidence material to him or her, which he or she could not, with reasonable diligence, have discovered and produced at the hearing.” Here, we treat defendant’s request to rescind the FA&O and reopen discovery as a request under section 5903(d). Further, with respect to the presentation of evidence at trial, subdivision (d)(3) of section 5502 states as follows: If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party’s proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.

Credible testimony from Applicant and full cross examination by Defendant, along with 42 medical reports/depositions and a vocational rehabilitation expert report.

From the decision · page 8Vega and the MSC, and there is no indication defendant made any efforts to secure rebuttal evidence during that time. Further, to the extent that defendant asserts that the existing record is incomplete, we agree with the following statements made by the WCJ in her Report: Defendant’s contention that the record was incomplete is disingenuous. The decision considered the substantial medical evidence, which was based on reasonable medical probability, of the two Agreed Medical Evaluators, two Panel Qualified Medical Evaluators, and a Primary Treating Physician. In total there were 42 medical reports/depositions. In addition, there was a vocational rehabilitation expert report and credible testimony from Applicant, which included a full cross examination performed by Defendant. The fact that Defendant failed to exercise due diligence and procure rebuttal evidence does not make the record incomplete or require development of the record for rebuttal, particularly when Defendant had almost 2 years to obtain rebuttal evidence and failed to do so.