ADJ15556443 · September 21, 2026

The WCJ's original permanent disability rating was based on scheduled ratings but did not constitute substantial evidence due to reliance on temporary restrictions from a non-specialist. Further development of medical and vocational evidence is needed, including evaluation of sports hernia and updated vocational evidence.

From the decision · page 1Applicant seeks reconsideration of a workers’ compensation administrative law judge’s (WCJ) Findings of Fact and Award of June 30, 2026, wherein it was found that while employed on November 18, 2021 as a Highway Patrol officer, applicant sustained industrial injury to the shoulders, neck, lungs, ankles, left eye, head, chest, psyche and knees causing permanent disability of 87% and the need for further medical treatment. In finding permanent disability of 87%, the WCJ combined the disabilities attributable to the various body parts utilizing the Combined Values Chart of the 20025 Schedule for Rating Permanent Disabilities and found that the vocational reporting of applicant’s expert Scott Simon did not constitute substantial medical evidence to rebut the scheduled rating. Applicant contends that the WCJ erred in not following the vocational evidence that he submitted to find that applicant was not employable and not amenable to vocational rehabilitation and was thus permanently totally (100%) disabled. We have received an Answer from the defendant and the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report). As explained below, we will grant reconsideration and defer the issue of permanent disability pending further development of the medical and vocational record and decision by the WCJ.

Applicant sustained industrial injury to multiple body parts on November 18, 2021, causing permanent disability of 87% as originally found by WCJ.

Favours neutral

This fact establishes the basis for the permanent disability rating and the need for further evaluation.

From the decision · page 1Applicant seeks reconsideration of a workers’ compensation administrative law judge’s (WCJ) Findings of Fact and Award of June 30, 2026, wherein it was found that while employed on November 18, 2021 as a Highway Patrol officer, applicant sustained industrial injury to the shoulders, neck, lungs, ankles, left eye, head, chest, psyche and knees causing permanent disability of 87% and the need for further medical treatment. In finding permanent disability of 87%, the WCJ combined the disabilities attributable to the various body parts utilizing the Combined Values Chart of the 20025 Schedule for Rating Permanent Disabilities and found that the vocational reporting of applicant’s expert Scott Simon did not constitute substantial medical evidence to rebut the scheduled rating. Applicant contends that the WCJ erred in not following the vocational evidence that he submitted to find that applicant was not employable and not amenable to vocational rehabilitation and was thus permanently totally (100%) disabled. We have received an Answer from the defendant and the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report). As explained below, we will grant reconsideration and defer the issue of permanent disability pending further development of the medical and vocational record and decision by the WCJ.

Vocational expert's report was not substantial evidence because it relied on temporary restrictions from a doctor who admitted the condition was beyond his specialty.

Favours Defendant prevailed

This undermined the vocational evidence supporting permanent total disability, leading to deferral for further development.

No specialist evaluated the applicant's sports hernia or attributed permanent impairment to it.

Favours neutral

This gap in medical evidence necessitated further development of the medical record before deciding permanent disability.

From the decision · page 4First, it is unclear if applicant is still seeking permanent disability with regard to his “sports hernia” complaints. It does not appear that any specialist ultimately evaluated this condition or attributed any permanent impairment to it. Secondly, the parties should be afforded the opportunity to develop the vocational record utilizing the correct, permanent work restrictions. Additionally, we note that review of vocational evidence may be beneficial to the reporting physicians in this case in clarifying applicant’s work restrictions. (Nunes, supra, 88 Cal.Comp.Cases at p. 751.) In the further proceedings, the physicians should be invited to review and comment upon the vocational evidence.

Dr. Klein stated that sports hernias were outside his domain but opined applicant was temporarily precluded from lifting, pushing or pulling greater than 25 pounds until evaluated by a specialist. He repeatedly mentioned sports hernias were beyond his expertise.

Dr. Klein's opinion was considered but found insufficient as it relied on temporary restrictions and lack of specialist evaluation for sports hernia.

Nunes v. State of California (2023) 88 Cal.Comp.Cases 741

A vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as ‘how and why’ any specific condition or factor is causing permanent disability (Nunes v. State of California (2023) 88 Cal.Comp.Cases 741).

The WCJ applied this standard to determine that the vocational report did not constitute substantial evidence because it relied on temporary restrictions from a doctor outside his specialty.

From the decision · page 4considerations used to evaluate whether a medical expert’s opinion constitutes substantial evidence are equally applicable to vocational reporting. In order to constitute substantial evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as ‘how and why’ any specific condition or factor is causing permanent disability.” (Nunes v. State of California (2023) 88 Cal.Comp.Cases 741, 751 [Appeals Bd. en banc].) The WCJ correctly determined that rebuttal partially based on temporary restrictions from a doctor admitting that the condition was beyond his specialty did not constitute substantial evidence to rebut the scheduled permanent disability. Nevertheless, our review of the record leads us to conclude that further development of the evidentiary record is needed on the issue of permanent disability.

Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396

The WCAB has a duty to further develop the record when there is a complete absence or insufficient medical evidence on an issue, ensuring substantial justice (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396).

The WCAB granted reconsideration and deferred permanent disability pending further development of medical and vocational evidence to ensure substantial justice.

From the decision · page 4The vocational evidence should also be updated to incorporate all of applicant’s permanent work restrictions. In parallel to the development of the vocational evidence, the medical evidence should be updated to discuss the application to this matter, if any, of the principles expressed in Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 [Appeals Bd. en banc], both with regard to whether applicant’s different impairments caused separate, non-overlapping impairments to applicant’s activities of daily living, as well as with regard to whether the any overlapping impairments to activities of daily living amplified the impairment. The WCAB has a duty to further develop the record when there is a complete absence of (Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 393-395 [62 Cal.Comp.Cases 924]) or even insufficient (McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]) medical evidence on an issue. The WCAB has a constitutional mandate to ensure “substantial justice in all cases.” (Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 403 [65 Cal.Comp.Cases 264].) In accordance with that

Vocational expert Scott Simon's report was found not to constitute substantial evidence because it relied on temporary restrictions from Dr. Klein, who admitted the condition was beyond his specialty.