Gunderson: A 70% Award Survived Disputes Over Job Duties, Medical Proof and Surveillance

If a disability rating treats your job as desk work when it actually required lifting equipment and crawling under desks, the number may miss important demands. Surveillance evidence can create a different worry: Whether a short recording fairly shows what happened and when. Both questions need evidence tied to the actual dispute.

In Gunderson v. County of Kern, No. ADJ9727055 (WCAB Sept. 5, 2023), the Workers’ Compensation Appeals Board denied the employer’s petition for reconsideration and left a 70 percent permanent-partial-disability award in place. The adopted judge’s report addressed job classification, medical apportionment and surveillance evidence. Each objection depended on its own factual foundation.

The duties mattered more than the information-systems title

James Gunderson worked as a senior information-systems specialist. He sustained a work injury when he slipped on stairs in March 2014, after an earlier neck surgery and return to work. The employer argued that occupational group 320 should apply instead of the group 470 used in the award.

The job-duty evidence in Gunderson went beyond the title. The written requirements described lifting and positioning equipment up to 40 pounds and working behind, under and around furniture. Gunderson testified that the real work was heavier: Printers could weigh as much as 100 pounds when lifted with assistance, and workstations could weigh up to 80 pounds when lifted without assistance. He also described moving around rather than mostly sitting.

The occupational-group discussion in Gunderson examined the employer’s argument that the work had become lighter after his earlier surgery. The worker’s account was that restrictions lasted for a period after his return, followed by full-duty work. His duties also included crawling under desks and installing cables, not simply carrying monitors.

The adopted report found the classification supported by the evidence. The proposed change had a concrete consequence on this record: Using group 320 would have reduced the rating from 70 to 64 percent and eliminated the life pension. Those were the consequences of the employer’s proposed classification, not the Board’s result.

Labor Code section 4660.1(a) includes the worker’s occupation at injury among the rating considerations. For a disputed classification, describe the duties actually required, the weights involved, whether assistance was used and how the work was performed. A generic title or outdated job description may leave those facts unexplained.

The medical challenge needed proof of a different apportionment

The record included earlier neck surgery, later neck and back treatment, changing medical opinions and disputes over symptoms. Orthopedic QME Elliott Schaffzin, M.D., ultimately apportioned 30 percent of the cervical impairment to the prior condition, while attributing the lumbar impairment to the 2014 injury. Those were separate body-part opinions.

The apportionment discussion in Gunderson addressed the employer’s criticism that the lumbar opinion ignored degeneration. The employer preferred an earlier treating opinion assigning half the lumbar impairment to other causes. The worker answered that the earlier report preceded significant later treatment, including spinal surgery, and no longer described the developed record.

The adopted report explained the consequence of the employer’s burden: Attacking a doctor’s failure to assign a nonindustrial percentage does not itself prove a different percentage. Without proof supporting the proposed apportionment, the employer had not established the requested reduction. The award already included applicable apportionment; the Board left it in place.

The question is the cause of permanent disability, as section 4663 requires. Compare the medical history, later treatment and explanation for each proposed allocation. A prior operation and a later injury need to be examined for their actual contribution to permanent disability, rather than assuming the same percentage applies to every affected area.

The video and the doctor’s review were different exhibits

The employer also offered surveillance film and an investigator’s report. A treating physician, Dr. Kathryn Mason, had reviewed the film and compared the activities shown with the worker’s presentation and reported limitations around the same time. Her reports included strong concerns about the consistency of those accounts.

The evidentiary discussion in Gunderson made an important distinction. The investigator’s report was excluded for lack of authentication, and the films were not exhibited at trial. Dr. Mason’s medical reports discussing the footage, however, were admitted and considered. Exclusion of the recordings did not remove every related medical opinion from the record.

That distinction helps when reviewing your own file. Identify which exhibit is disputed: The recording, the investigator’s description or a doctor’s medical opinion based on viewing it. An objection to one item needs to be understood alongside the rulings and evidence concerning the others.

The filming dates and possible editing required a foundation

The employer argued that the doctor’s review sufficiently authenticated the films. The adopted report rejected that argument on this record. The doctor’s comparison depended on whether the filmed activities occurred on the same days as the examinations and statements she discussed. From her medical office, she could not verify those filming dates.

The report also identified possible editing as a foundation question. It required evidence from the investigator about the recordings’ dates and preparation, rather than treating the doctor’s review as a substitute. The practical issue was whether the footage had been established as reliable for the particular comparison being made.

For a date-specific video claim, counsel should examine the recording, how its dates are established, the relevant investigator’s information and what any editing removed or changed. Keep an objection focused on the actual foundation problem. The fact that a doctor viewed a recording and the proof establishing when and how it was made are different matters.

The Board left the 70 percent award in place

The Board’s order in Gunderson denied reconsideration after adopting the judge’s opinion and report. The award remained 70 percent permanent partial disability after the applicable rating adjustments and apportionment. The employer’s lower proposed classification and competing medical view did not change that result.

For the job-duty issue, the record supported the classification used. For apportionment, the requested alternative needed medical proof. For the films, the missing foundation mattered even though a physician had reviewed them. These were distinct reasons within the same reconsideration dispute.

Match the rating inputs and video claims to the evidence

If your occupational group is disputed, compare the job description with accurate examples of your required work at the time of injury. Include equipment weights, assistance, physical positions and any change in duties after earlier treatment. Identify the source for those facts, such as testimony, written requirements or other lawfully available records.

If surveillance is being used, preserve the actual materials received, the dates asserted, the doctor’s discussion and any admission ruling. Review discrepancies with counsel and give accurate descriptions of your activities and limitations. Focus on what the evidence reliably establishes.

Our guide to DEU ratings explains the broader role of occupation and other rating inputs. Gunderson illustrates why the supporting job facts, medical explanations and evidentiary foundation must be checked before accepting a proposed lower percentage.