Ja’Chim Scheuing: A 28 Percent Award and a Doctor Not Asked About the Vocational Reports

You live with constant pain. A judge, working from a doctor’s findings, rates your permanent disability at 28 percent. Your vocational expert says you cannot work at all. Then the question becomes whether the doctor was ever asked about the vocational evidence.

That problem reached the Workers’ Compensation Appeals Board in Ja’Chim Scheuing v. Lawrence Livermore National Laboratory, Nos. ADJ8655364, ADJ14830172 (WCAB Mar. 27, 2024). The worker asked the Board to find her totally disabled and to credit her expert over the doctor. She did not get that finding. She got a new chance. A three-member panel, Commissioners Snellings and Dodd and Chair Zalewski, adopted the trial judge’s report except for its recommendation to deny her petition, then canceled the award and sent the case back for more evidence. The panel tied that step to the Board’s en banc decisions in Nunes, which explain how medical and vocational evidence fit together. The Board designated this a significant panel decision after review by all its members.

The same decision also tells what the Board did when a district office did not tell it a petition was waiting.

A nurse practitioner, burning feet and a 28 percent rating

Sandra Ja’Chim Scheuing was a nurse practitioner at the laboratory when she was injured on February 23, 2007. The accepted injury included her knees, feet, ankles and right elbow, and complex regional pain syndrome in her lower extremities, a chronic pain condition.

She testified at a second trial in 2022 that she had last worked in June 2018, that she had pain around the clock that felt like walking on hot embers, and that she slept about two hours a night. She was 70 and had planned to work until 72. Her last job had been about one day a week, and her hours shrank when her employer saw she needed a cane.

The parties’ agreed medical evaluator, Dr. Michael Post, gave specific work restrictions, including no lifting, carrying, pushing or pulling over 15 pounds on an occasional basis, no running or climbing ladders, a chance to change position every 20 to 30 minutes, and a cane for long distances. He assigned 20 percent of the pain syndrome rating to diabetes-related nerve disease, a nonindustrial cause. Working from his impairment ratings, the judge calculated 28 percent permanent disability.

The gap between the doctor and the vocational expert

Her vocational expert, Eugene Van de Bittner, concluded she could not benefit from retraining and had no access to the labor market. Her theory, under the Supreme Court’s LeBoeuf decision, was that this overcame the rating and made her totally disabled. Even on that route, Nunes requires the doctor’s apportionment to be addressed.

The judge gave several reasons for not accepting that opinion, in a report the Board later adopted while canceling the award it defended. The retraining conclusion itself was, in the judge’s view, “conclusory.” Dr. Post’s restrictions left room for potential jobs, and an agreed evaluator’s opinions have “special significance.” That was so even though no admitted defense report rebutted the vocational expert’s conclusions.

The restrictions were a further problem. A physical therapist’s functional capacity evaluation had found much tighter limits than Dr. Post’s. Dr. Post called it “reasonably consistent” with his own restrictions, but in his deposition he declined to adopt those limits. The vocational expert appeared to use them anyway. The judge did not think that was proper: A vocational opinion on available jobs “must be based and rooted on the relevant medical opinion regarding work restrictions, especially in cases like this one where there is a reporting AME,” meaning an agreed medical evaluator.

Apportionment, the assignment of part of a disability to non-work causes, was the other problem. The vocational expert acknowledged the doctor’s 20 percent and wrote that her condition was so debilitating that “even if 20% of her permanent disability were set aside,” her employability loss would be 100 percent due to the work injury. The judge found that insufficiently explained under the Board’s Escobedo v. Marshalls standard, 70 Cal.Comp.Cases 604 (2005), which requires an opinion to give reasoning for its conclusions. Nunes, which came after this vocational report, held that vocational evidence must address apportionment and may not replace valid medical apportionment. In our reading, the expert’s 100 percent statement raises that problem.

Whether the doctor should have seen the vocational reports

The petition appeared to argue that Dr. Post should have been sent the vocational reports and commented on them, and that he had not, seemingly because of defense counsel’s objections. The source does not describe what Dr. Post did review in his last report. The judge disagreed with the reported defense position. Having the doctor review vocational evidence was “fair game,” and it would have been reasonable to get that opinion.

The judge also thought she had given up the issue by not contesting it or listing it for trial. And the judge still found the 20 percent apportionment to be substantial evidence, meaning strong enough to support a decision, and rejected the argument that the lack of review undermined it. But the judge conceded that in light of the second Nunes opinion it was “more of an issue today than it was at the time,” and said the panel might want to send the case back.

Why the Board sent it back

The panel opened its merits discussion with that passage. It then summarized Nunes I, 88 Cal.Comp.Cases 741, and Nunes II, 88 Cal.Comp.Cases 894, both en banc. Evaluating physicians regularly review vocational issues, the panel noted, and vocational evidence is an important factor in preparing medical-legal reports.

The panel also noted that discovery closed and trial took place before those opinions, and that the matter was taken under submission, meaning left with the judge for decision, on June 7, 2023. The judge’s report gives a later resubmission date, September 14, 2023, and the award issued December 1, 2023, after both Nunes opinions. The panel did not address that sequence.

Citing its duty to decide on substantial evidence and the parties’ right to due process, the panel found gathering more evidence appropriate. It canceled the award and returned the case, and any party may challenge the new decision. It made no waiver ruling and did not spell out what must be added. We read the quoted passage about the doctor and the vocational reports as the likely focus.

The petition the Board was not told about

Before reaching the merits, the panel dealt with timing. She filed her petition for reconsideration on time, on December 18, 2023, at the Oakland district office, and it was scanned into the state’s electronic case system. Under section 5909 as it then read, a petition was deemed denied unless the Board acted within 60 days of filing. By our count, day 60 was February 16, 2024. But the district office did not tell the Board about it until it transmitted the case on February 21, day 65 by our count. The panel says the judge’s report issued February 27, although the report is dated February 26, and the judge apologized for the delay. Her lawyer also wrote to the Board in February and March.

The panel paused the deadline. It relied on Shipley v. Workers’ Compensation Appeals Board, 7 Cal.App.4th 1104 (1992), which held the 60 days were paused when the Board misplaced a file through no fault of the parties. A petition never considered because of such an irregularity deprives the party of a decision on the merits and compromises meaningful appellate review. So its time ran until 60 days after February 21, and the decision came 35 days after transmission. Once a party has confirmed a timely filing under the Board’s Rule 10615, the panel added, due process lets that party reasonably expect the petition to be considered.

The panel flagged a contrary decision in a footnote. Zurich American Insurance Co. v. Workers’ Compensation Appeals Board, 97 Cal.App.5th 1213 (2023), concluded that section 5909 ends the Board’s power after 60 days, so later decisions are void unless specified equitable circumstances are present. The panel called that an apparent split and followed Shipley, saying appellate courts have consistently done so. As we read it, the panel did not apply Zurich’s exception to these facts.

The rule has since moved. Effective July 2, 2024, as the Board explained in a 2025 panel decision in the Nunes case, section 5909 was amended so the 60 days run from the date the trial judge transmits the case, and service of the judge’s report counts as notice. The panel in this case recommended that once the 60 days expired with no response, parties contact the district office to confirm transmission. Under the amended statute, in our reading, the absence of a judge’s report is the reason to call.

Later developments. In Mayor v. Workers’ Compensation Appeals Board, No. S287261 (Cal. Aug. 24, 2026), the California Supreme Court held that the 60-day deadline in former section 5909 is mandatory and that the Board may not equitably toll its own deadline to act. The Court read Shipley as a due process decision, disapproved it to the extent it suggests every party has a due process right to Board review after the deadline, and left open what circumstances, if any, would violate due process. The panel’s tolling reasoning cannot be relied on for a petition under former section 5909.

If your case looks like this

These are our practical takeaways.

• Ask the doctor whether he or she adopts any restrictions your vocational expert relies on. Here the judge refused to rely on limits the agreed doctor declined to adopt, and the Board adopted that reasoning while sending the case back.
• Ask to have the vocational reports sent to the doctor. If the other side objects, raise the dispute and list it for trial. The judge thought this worker had given up the point. The panel sent the case back without ruling on that.
• Account for the doctor’s apportionment. A vocational report has to account for valid apportionment by the doctor. It cannot replace that apportionment with its own, however it is explained.
• Confirm your petition was filed and sent up. Keep proof of the filing date, and call the district office if no judge’s report arrives.

For representation in a dispute over total disability, see our California workers’ compensation practice.