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.
AMERelied upon · orthopedic
Found applicant limited to sedentary work due to back and left knee, with restrictions on left upper extremity; restrictions 100% related to industrial injury; no apportionment.
His medical restrictions supported the vocational expert's opinion on non-feasibility and no apportionment.
From the decision · page 7CONTENTION A: THE APPLICANT FAILED TO MEET HER BURDEN ON
NON-FEASIBILITY OF VOCATIONAL REHABILITATION BECAUSE THE
REPORTING OF MR. CALDERON (APPLICANT'S VOCATIONAL EXPERT)
IS NOT SUBSTANTIAL EVIDENCE
This contention is in error and should be denied.
Dr. Jeffrey Bernicker issued a multiplicity of reports including those of March 2,2021 (Jt.
Ex. 1 ), August 9, 2023 (Jt. Ex. 2); and October 23, 2023 (Jt. Ex. 3). In his March 2, 2021 report
(Jt. Ex. 1 ), he found the applicant to be limited to sedentary work due to her back and left knee.
He also found that the applicant had a restriction to her left upper extremity limiting her from
repetitive work at or above shoulder level and lifting greater than 10 pounds below shoulder level.
This report rates under the 1996 rating manual since this is a 2002 date of injury:
PTPRelied upon · internal medicine
Issued work restrictions of no heavy lifting or repeated bending and stooping, subsumed into sedentary work restriction; found no apportionment.
His restrictions further eroded sedentary job base and supported no apportionment.
From the decision · page 7BACK: 12. 1-70-3408-72-72 (sedentary work restriction
LEFT KNEE: 2/3(14. 631-15-3408-17=17) 11 (atrophy)
LEFT SHOULDER- 7. 3-5-340f-5-5 rated on no repetitive at or below shoulder
level. The weight lifting is subsumed into the sedentary work restriction.
AMERejected · psychiatry
Found applicant had slight impairment in work pace and assigned 25% apportionment to non-industrial causes; overall rating 75%.
His psychiatric apportionment was rejected by the panel in favor of orthopedic-based award without apportionment.
From the decision · page 7Dr. Bernicker found the restrictions to be 100% related to the industrial injury.
Furthermore, the restrictions on use of her left upper extremity erodes the number of
sedentary jobs that she can do.
Dr. Daniel Bresler evaluated the applicant for disability related to internal medicine
issues/hernia. He issued work restrictions of no heavy lifting or repeated bending and stooping
which are subsumed into the sedentary work restriction. However, these work restrictions further
erode the base of sedentary jobs. Dr. Bressler found no apportionment.
Dr. Robert Zink, Ph.D. was the psychologist AME. Dr. Zink found that the applicant had
a GAF (Global Assessment of Functioning of 57). However, as this is a 2002 date of injury, the
report was rated under the 8 categories of Function (note Dr. Zink found 25% to non-industrial
causes). However he found that she had slight impairment in her ability to maintain a work pace
appropriate to a given workload. The overall rating of Dr. link's report with apportionment is 75%
(1.4-16-340D-13-13) = 9.75 or 10%.
Dr. Blake Thompson is the applicant's pain management doctor. He added an additional
restriction that the applicant needed to have a brace on her left knee because of the thigh atrophy
PTPRelied upon · pain management
Added restriction for knee brace and cane; agreed with vocational expert's conclusion of non-feasibility due to pain from orthopedic injuries with no apportionment.
His opinion supported the vocational expert's findings on pain-related limitations and no apportionment.
From the decision · page 8to stabilize her leg and to use a three-point cane. He reviewed the report of Alexander Calderon,
the applicant's vocational expert, and agreed with the conclusion. (Applicant's Exhibit 1-July 13,
2022, page 6; App. 2- May 3, 2022, page 1; and App. Ex. 3, Feb 10, 2022, page 6). The "pain"
stems solely from the admitted orthopedic injuries she sustained for which Dr. Bernicker finds no
apportionment. It is the pain that limits her concentration and ability to maintain an adequate work
pace.
vocational_expertRelied upon
Opined applicant's ability to compete in labor market is entirely eroded due to orthopedic injuries and chronic pain; vocational rehabilitation non-feasible; no apportionment to non-industrial causes.
His vocational opinion was found substantial evidence supporting non-feasibility and no apportionment.
From the decision · page 8Applicant's vocational expert, Alejandro Calderon opined that the applicant's ability to
compete in the open labor market continues to be "entirely eroded from an orthopedic perspective
and chronic severe chronic pain symptomology, limited physical tolerances and stamina, and that
her amenability to Vocational Rehabilitation Services for employment at this time remains non-
feasible. (App. Ex. 5, December 2, 2021, pages 1, 2, 15, 17, 19 point 4, 21 most of page, page 22
(no apportionment to non-industrial causation; App. Ex. 6 June 9, 2023, pages 6-7 (Response)).
Since his opinions are based on the reports of Dr. Thompson and Dr. Bernicker, and is limited to
her limitations due to pain and the orthopedic injuries for which there is no apportionment, the
applicant has met her burden on the issue of vocational feasibility.
vocational_expertRejected
Initially found applicant employable with vocational apportionment due to non-industrial factors; later deleted vocational apportionment but noted non-industrial factors limiting access to sedentary jobs; reports not substantial evidence.
His vocational reports were rejected as not substantial evidence due to reliance on non-industrial factors and Nunez precedent.