What the panel ordered
Decision after reconsideration affirms the August 12, 2021 Findings and Award except for amendments clarifying permanent and total disability arises from non-feasibility for vocational rehabilitation and removal of vocational apportionment reference.
Petition for Reconsideration filed by defendant challenging the August 12, 2021 Findings and Award; reconsideration granted and decision after reconsideration issued affirming and amending the prior decision.
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 WCA's findings and the Appeals Board's review found substantial medical evidence supporting applicant's permanent and total disability based on non-feasibility for vocational rehabilitation, rejecting defendant's apportionment arguments due to lack of substantial evidence.
From the decision · page 1Defendant seeks reconsideration of the August 12, 2021 Findings and Award (F&A), wherein the workers' compensation arbitrator (WCA) found that applicant, while employed as an ironworker on October 8, 2018, sustained industrial injury to his neck, mid-back (thoracic spine) and lower back (lumbar spine). The WCA found that applicant successfully rebutted the scheduled rating under the Permanent Disability Ratings Schedule (PDRS) and was permanently and totally disabled without apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant is not amenable to vocational rehabilitation, resulting in 100% permanent and total disability.
Favours Applicant prevailed
This fact underpins the finding of permanent and total disability, supported by vocational expert and medical evidence.
From the decision · page 155. Applicant has sustained 100 percent permanent and total disability because he is not amenable to vocational rehabilitation services.
Defendant failed to provide substantial medical evidence for apportionment of permanent disability.
Favours Applicant prevailed
Lack of detailed explanation in apportionment opinions led to rejection of apportionment arguments.
From the decision · page 13Defendant next contends the WCA erred in declining to apply 10 percent nonindustrial apportionment identified by both Drs. Cabayan and Wolfson to the finding of permanent and total disability. (Petition, at pp. 11-12.) The WCA's Opinion observes however that neither physicians' apportionment opinion describes how or why the identified factors of apportionment are currently contributing to applicant's permanent disability or how the physician identified the appropriate percentage of apportionment. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo).) The entirety of Dr. Wolfson's apportionment analysis is a one sentence statement as to the existence of pathology in the spine, without further explication. (Opinion on Decision, at p. 21:20; Ex. A, Report of Ronald B. Wolfson, M.D., dated December 5, 2019, at p.
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.
Provided detailed medical reports and functional capacity evaluations supporting applicant's permanent disability and work restrictions; reporting found substantial medical evidence.
The WCA and Appeals Board gave great weight to Dr. Cabayan's detailed and consistent medical reporting, finding it substantial evidence supporting permanent disability and rejecting defendant's challenges.
From the decision · page 2The parties in this matter are subject to the alternative dispute resolution (ADR) program set forth in the Ironworkers Collectively Bargained Workers' Compensation Program agreement. (See Lab. Code, § 3201.5.) Pursuant to the ADR program, applicant selected Vatche Cabayan, M.D., as a Qualified Medical Evaluator (QME) in orthopedic medicine. Defendant has selected Ronald B. Wolfson, M.D., as a QME in orthopedic medicine. Applicant has also obtained medical treatment and reporting from Babak Jamasbi, M.D. Applicant has also offered into evidence reporting from vocational expert Frank Diaz, while defendant has offered reporting from vocational expert Emily Tincher.
Provided medical reports with apportionment opinions lacking detailed explanation; apportionment analysis rejected as not substantial evidence.
The WCA and Appeals Board found Dr. Wolfson's apportionment analysis conclusory and insufficiently explained, thus not substantial evidence for apportionment.
From the decision · page 13Defendant next contends the WCA erred in declining to apply 10 percent nonindustrial apportionment identified by both Drs. Cabayan and Wolfson to the finding of permanent and total disability. (Petition, at pp. 11-12.) The WCA's Opinion observes however that neither physicians' apportionment opinion describes how or why the identified factors of apportionment are currently contributing to applicant's permanent disability or how the physician identified the appropriate percentage of apportionment. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo).) The entirety of Dr. Wolfson's apportionment analysis is a one sentence statement as to the existence of pathology in the spine, without further explication. (Opinion on Decision, at p. 21:20; Ex. A, Report of Ronald B. Wolfson, M.D., dated December 5, 2019, at p.
Concluded applicant is not feasible for vocational rehabilitation and has 100% loss of labor market access, supporting permanent and total disability finding.
From the decision · page 2The parties in this matter are subject to the alternative dispute resolution (ADR) program set forth in the Ironworkers Collectively Bargained Workers' Compensation Program agreement. (See Lab. Code, § 3201.5.) Pursuant to the ADR program, applicant selected Vatche Cabayan, M.D., as a Qualified Medical Evaluator (QME) in orthopedic medicine. Defendant has selected Ronald B. Wolfson, M.D., as a QME in orthopedic medicine. Applicant has also obtained medical treatment and reporting from Babak Jamasbi, M.D. Applicant has also offered into evidence reporting from vocational expert Frank Diaz, while defendant has offered reporting from vocational expert Emily Tincher.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Ogilvie v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1277
An employee may challenge the scheduled percentage of permanent disability by showing a greater loss of future earning capacity due to industrial injury and non-amenability to rehabilitation.
Applied to support the finding of permanent and total disability based on vocational non-feasibility.
From the decision · page 11However, "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." 5 (Ogilvie, supra, at p. 1277.) The court in Ogilvie thus affirmed the continued relevance of vocational evidence with respect to the determination of permanent disability. (Applied Materials v. Workers' Comp. Appeals. Bd. (Chadburn) (2021) 64 Cal.App.5th 1042 [86 Cal.Comp.Cases 331]; see also County of Sonoma/Health Services Dept. v. Workers' Comp. Appeals Bd. (Helper) (2023) 88 Cal.Comp.Cases 309 [2023 Cal. Wrk. Comp. LEXIS 4] (writ den.).)
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Medical apportionment requires a detailed explanation of how nonindustrial factors contribute to permanent disability to be substantial evidence.
Applied to reject defendant's apportionment arguments due to lack of substantial evidence.
From the decision · page 13Defendant next contends the WCA erred in declining to apply 10 percent nonindustrial apportionment identified by both Drs. Cabayan and Wolfson to the finding of permanent and total disability. (Petition, at pp. 11-12.) The WCA's Opinion observes however that neither physicians' apportionment opinion describes how or why the identified factors of apportionment are currently contributing to applicant's permanent disability or how the physician identified the appropriate percentage of apportionment. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo).) The entirety of Dr. Wolfson's apportionment analysis is a one sentence statement as to the existence of pathology in the spine, without further explication. (Opinion on Decision, at p. 21:20; Ex. A, Report of Ronald B. Wolfson, M.D., dated December 5, 2019, at p.
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment.
Clarified that there is no statutory provision for vocational apportionment; amended finding to remove vocational apportionment reference.
From the decision · page 14Although we concur with the WCA's medical apportionment analysis, we also note that the WCA has determined that there is "no valid apportionment, medically or vocationally of the applicant's permanent disability." (Finding of Fact No. 6, italics added.) In Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741, 751 [2023 Cal. Wrk. Comp. LEXIS 46], we held that while section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, the Labor Code makes no statutory provision for "vocational apportionment." (Id. at p. 743.) We acknowledge that WCA's decision herein significantly antedated our en banc opinion in Nunes, and as a result, we will amend Finding of Fact No. 6 to remove the reference to vocational apportionment.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible, straightforward, and almost stoic testimony observed by the WCA at arbitration.
From the decision · page 11We concur with the WCA's analysis. We also note that the WCA described in detail his assessment of witness credibility. The WCA noted he had an unobstructed view of applicant during the arbitration proceedings, and that applicant testified in a manner that was "credible, straightforward, and almost stoic." (Opinion on Decision, at p. 3.) We accord to the WCA's credibility determination the great weight to which it is entitled because the WCA had the opportunity to observe the demeanor of the applicant. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, and following our independent review of the record, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCA's credibility determination. (Id.) We therefore agree with the WCA's assessment that the reporting of Dr. Cabayan, including the assessment of functional capacity, constitutes substantial medical evidence.
Detailed and consistent medical reports and functional capacity evaluations by Dr. Cabayan.
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