Nunes: Everyone Agreed She Couldn’t Work. The Fight Was Over Why.

You have been told you will never work again. It is natural to think the rest follows and that the employer owes all of it. Often the fight is just starting. An employer owes only for the disability the work injury caused. A degenerating neck, diabetes or an old injury can cut what it owes, even if none of those conditions ever kept you off the job.

So someone has to say how much of your inability to work came from the job. Lawyers call that split apportionment. Grace Nunes’s case asked who is allowed to give that answer. Every expert agreed she could not be retrained for other work. The two vocational experts disagreed about why, and each tried to settle the disagreement with a number of his own.

The Workers’ Compensation Appeals Board answered in two full-board decisions that every workers’ compensation judge must follow: Nunes v. State of California, Department of Motor Vehicles, 88 Cal.Comp.Cases 741, Nos. ADJ8210063, ADJ8621818 (WCAB en banc June 22, 2023), and a second opinion in the same case, 88 Cal.Comp.Cases 894 (WCAB en banc Aug. 29, 2023). Only a physician can give an apportionment opinion. A vocational expert cannot, and must instead take into account any valid apportionment the doctor has found. The judge then decides whether the doctor’s opinion holds up. Vocational evidence stays in the case, and a worker can still win an unreduced 100 percent award by showing that the work injury alone caused the total disability. The Board did not decide what Nunes was owed. It set aside her award because the record could not answer the question.

Two injuries, a neck fusion and a doctor’s percentages

Nunes worked as a field representative for the Department of Motor Vehicles. The State admitted two injuries: a specific injury on September 13, 2011, to her neck, upper extremities and left shoulder, and a cumulative injury to both upper extremities over the year ending that day. In 2014 she had neck surgery that included a fusion at C5-6.

Dr. Melinda Brown, the qualified medical evaluator, split the causes body part by body part. The left shoulder was 100 percent industrial. The neck was 60 percent industrial, with 40 percent going to preexisting degenerative factors. The carpal tunnel symptoms were 40 percent industrial and 60 percent nonindustrial diabetes. Those were the numbers on the table when the question changed from how impaired she was to whether she could work at all.

Dr. Brown answered that too. In 2021 she wrote that “[f]unctionally, I do not believe [applicant] would be employable in the open-labor market based on evaluation today,” and that the inability to work was “based on a pain basis and function.” Later that year, after reading the vocational assessment, she agreed that Nunes was 100 percent disabled.

Two vocational experts and two different numbers

A vocational expert studies what a person can still do in the labor market. Each side hired one.

Gene Gonzales, for Nunes, found a 100 percent loss of access to her labor market and concluded she was not amenable to retraining. Then he took on apportionment. “Vocational apportionment is not the same as medical apportionment,” he wrote. A medical impairment does not always become a work disability, and Nunes had done her job with “zero impediment” until 2011. Her preexisting condition, he concluded, “had zero impact to her earning capacity.” So 100 percent of her loss was industrial.

Steven Koobatian, for the State, also found she was likely not employable. He then assigned “at least 10% vocational apportionment” to nonindustrial medical factors. His later explanation was that those conditions “would likely be further aggravated” if she tried other work.

So one expert said the nonindustrial share was zero, the other said ten, and neither figure matched the doctor’s percentages.

A two-paragraph explanation

The case went to trial in December 2022 on permanent disability and apportionment. The judge awarded 100 percent, unapportioned. The whole explanation ran two short paragraphs and ended this way: “She’s found to be 100% disabled as there is no evidence of previous loss of earnings capacity.”

The State argued that the judge had given no real reasons, had not said which injury caused what, had ignored the doctor’s 40 percent for the neck, and that Nunes had not rebutted her scheduled rating. Nunes answered that total disability is a complete loss of earning capacity, so subtracting medical impairment from it makes no sense. The Board took the case as a full panel.

The old argument stopped working in 2004

In our reading, the judge’s sentence sounds like an older rule. Before the 2004 reform, as the Board explained in Escobedo, one statute required a preexisting condition to have been “in fact labor disabling” before the injury. Another allowed apportionment to a condition that had not yet disabled the worker, but only with medical evidence that a definable part of the disability would have developed anyway. Pathology by itself could not be apportioned, and neither could a work restriction a doctor imposed after the fact, with no evidence the worker had actually been restricted before the injury. Under those rules, in our reading, a clean work history went a long way.

Senate Bill 899 repealed those statutes. In Escobedo v. Marshalls, 70 Cal.Comp.Cases 604 (WCAB en banc 2005), the Board held that apportionment now reaches disability that once could not be apportioned, including pathology and asymptomatic prior conditions, when substantial medical evidence shows those factors caused permanent disability. A condition can have been silent on the job and still be a cause of what the worker is left with today.

That is why the Nunes Board treated a clean work history as the wrong kind of fact. It collected examples of facts it called “not germane”: assertions that a disability is solely industrial because the worker had no prior work restrictions, could adequately perform the job, or suffered no wage loss before the injury. The list draws on a panel decision and two Court of Appeal decisions, City of Petaluma v. Workers’ Compensation Appeals Board (Lindh), 29 Cal.App.5th 1175 (2018), and Acme Steel v. Workers’ Compensation Appeals Board (Borman), 218 Cal.App.4th 1137 (2013). As Nunes describes Borman, a judge found a worker with hearing loss totally disabled on vocational testimony that no jobs remained for him and that he had lost no earnings after an earlier injury. An evaluator had attributed 60 percent of the hearing loss to noise, including that earlier injury, and 40 percent to other factors. The Court of Appeal accepted that vocational proof could show a total loss, then reversed because the judge had failed to address apportionment in the face of that unrebutted medical evidence.

The statute gives apportionment to the doctor

Labor Code section 4663(c) says a physician’s report on permanent disability is not complete without an apportionment determination, and it tells the physician what to find: what approximate percentage was directly caused by the work injury and what approximate percentage by other factors, before and after it, including prior industrial injuries.

The Board read that as an assignment, and as an exclusive one. Section 4663(c), it wrote, “does not provide” for “collateral sources of expert opinion as to apportionment.” The conclusion followed in one line: “‘vocational apportionment’ offered by a non-physician is not a statutorily authorized form of apportionment.” Calling a percentage vocational does not give it a home in the statute.

The vocational expert still has a job

A reader could stop there and conclude that vocational evidence lost. The Board spent the next several pages saying otherwise.

Permanent disability starts with a rating schedule built on the AMA Guides, and that rating is presumptive. A worker can rebut it, and one recognized way is to show that the injury keeps her from being retrained, so her lost earning capacity is greater than the schedule says. The California Supreme Court recognized that route in LeBoeuf v. Workers’ Compensation Appeals Board, 34 Cal.3d 234 (1983), and the Court of Appeal restated it in Ogilvie v. Workers’ Compensation Appeals Board, 197 Cal.App.4th 1262 (2011). (We cover the Board’s earlier decision in Ogilvie separately.) The Board said the route still applies to injuries on or after January 1, 2013. A decision that broad, the AMA Guides say in a passage the Board quoted, usually requires input from medical and nonmedical experts, such as vocational specialists.

The Board gave concrete uses. A vocational expert can separate body parts and show that one condition, standing alone, ended the worker’s employability. It described a case in which vocational evidence showed a worker was totally disabled on an unapportioned psychiatric basis alone. It described another in which work restrictions that came solely from treating the industrial injury kept the worker from any gainful employment. And it held that a vocational report answers to the same test as a medical one: To be substantial evidence, meaning reasoned and reliable enough to support a decision, it must explain “how and why” a condition or factor is causing permanent disability.

There is a line between what the vocational expert may not do and what the expert must do. Giving a percentage of apportionment is forbidden. Accounting for the doctor’s is required: “vocational reporting must consider valid medical apportionment.” When a physician identifies a valid basis for apportionment, the August opinion added, it must be considered in the vocational expert’s evaluation of whether the worker can be retrained. The expert must also show familiarity with the concepts of apportionment and explain the basis for the opinion in detail.

Doctors, in turn, are expected to read these reports. Considering vocational evidence is “appropriate and often necessary” for an evaluating physician, the Board said, including whether the reasons a worker cannot be retrained “arise solely out of the present industrial injury or are multifactorial.”

Why both vocational reports failed

The Board observed that all three experts agreed Nunes could not be retrained, and that this rendered her permanently and totally disabled. Then it turned to apportionment and the two reports.

The Board approved part of Gonzales’s work. He set aside the right arm and carpal tunnel problems and asked what the remaining limitations did by themselves. The June opinion describes what remained as the neck, and the August opinion as the neck and left shoulder. That parsing, the Board said, was “a valid and appropriate use for vocational evidence.” His trouble came next. He dismissed the prior award and the degenerative changes because they had never reduced her ability to do the job or her earnings. That reasoning skipped the question Escobedo and Lindh require. Whether the degeneration had hurt her paycheck did not answer whether it was contributing to her disability now.

Koobatian’s number fared no better, and the Board’s first criticism was simple. He never showed how he got to 10 percent. The Board called the reporting speculation and held it was not substantial evidence on apportionment. In August it added that both experts’ reports failed as apportionment evidence to the extent they put vocational apportionment in place of the doctor’s. An employer’s expert who asserts a small percentage is held to the same rule as a worker’s expert who asserts none.

The judge’s decision failed separately. Labor Code section 5313 requires a judge to state the reasons for a decision, and section 3208.2 requires separate determinations for each injury when more than one contributes. This decision did neither. The Board rescinded the award and returned the case for a new decision on each injury.

A 40 percent neck figure was only the start

Dr. Brown assigned 40 percent of the neck disability to degeneration. In our reading, that figure alone does not say why Nunes could not be retrained, and the sources give no formula for applying a body-part percentage to a total disability award. A worker might be tempted to think the number means nothing. An employer might think it means 60 percent. The Board left the connection open.

It expressed no opinion on whether Dr. Brown’s apportionment was valid. It required the vocational reports to account for any apportionment that was valid. And it noted that she had described apportionment for each body part or condition but “has not been asked to address apportionment in relation to the factors identified by the vocational experts.” To meet their burdens of proof, it suggested, the parties may wish to ask her whether the things keeping Nunes out of retraining are themselves subject to medical apportionment, or whether they trace only to current industrial conditions.

That framing shows the way to an unreduced award. The June opinion told judges to decide whether the cause of the total disability includes nonindustrial or prior industrial factors, or whether the inability to retrain “arises solely out of the current industrial injury.” If it arises solely from the injury, an unapportioned award may be appropriate. That holds even when valid apportionment exists elsewhere in the record. Nunes relied on Pacific Compensation Insurance Co. v. Workers’ Compensation Appeals Board (Nilsen), 78 Cal.Comp.Cases 722 (2013), a nonbinding case in which a petition for appellate review was denied. The work injuries there produced a new chronic pain syndrome, and doctors found that the syndrome alone made the worker totally disabled, although the record showed other valid apportionment. The Board said its opinion was consistent with that outcome. In our reading, a worker whose nonindustrial condition is real but has nothing to do with why she cannot be retrained has that argument available. It has to be proved with evidence that looks at the actual reasons.

Under Escobedo, the worker must establish the percentage of disability directly caused by the injury, and the employer must establish the percentage caused by other factors. Those burdens are why the Board suggested going back to Dr. Brown. The State also claimed a statutory presumption under section 4664 based on a 1996 injury. It lost that point because it never put the earlier award into evidence.

The worker pushed back, and the Board answered

Nunes asked the Board to reconsider. Her petition predicted that the decision would be “disastrous” and would cause an “implosion” of the system. The Board denied the petition in August. Its first reason was that she had not challenged the finding that the judge’s decision fell short of section 5313, which the Board said could justify denial by itself. It then answered her main arguments.

The answer that helps workers most turned on the word “valid.” Nunes argued that “otherwise valid” medical apportionment assumes the doctor is right. The Board’s response: Validity “is therefore not assumed.” A doctor’s apportionment has to be substantial evidence, resting on the whole record and a correct legal theory. If a judge finds that no physician identified valid apportionment, the worker gets an unapportioned award, and a vocational expert may not step in to supply one. If the opinion fails and the record does not warrant more development, the same result follows. The worker gets the same result when a doctor considers the factors and cannot put percentages on them to a reasonable medical probability, again if more development is not warranted.

Nunes also argued that doctors are unequipped or unwilling to deal with vocational evidence. The Board rejected that as speculative and pointed out that Dr. Brown had done exactly that in this case.

She also argued that requiring a vocational expert to adopt the doctor’s percentages would create “pass-through” apportionment, a recognized defect when one doctor simply repeats another. The Board’s reply was short. There can be no pass-through to someone not authorized to apportion in the first place.

She warned, too, that the decision could force judges to apply invalid apportionment. The Board said it does not. Where there is a significant question about a doctor’s opinion, the vocational expert “is free to offer their analysis in the alternative.” That permission has a limit. The expert still may not offer a “competing or alternate apportionment analysis” of the expert’s own. In our reading, a report can say what follows if the doctor’s apportionment stands and what follows if it does not.

Back to the judge, again

A remand is not an ending, and Nunes shows what one can cost. The parties returned to trial in September 2024 and submitted arguments, with no new documents or testimony. The judge ordered the two en banc decisions and any new medical records sent to Dr. Brown and the decisions sent to both vocational experts, with new reports to follow. Nunes objected that this would delay a final decision for months or years.

A panel denied her petition on February 27, 2025. Because she challenged only the order for more reports, it applied the demanding standard for interim rulings, and it found neither undue prejudice nor irreparable harm. Issuing another award on the same evidence, the judge had explained, would leave everyone where they started. The panel laid out his job in two steps: First decide whether the doctor identified valid medical apportionment. If so, decide whether the vocational experts properly accounted for it. The ruling came more than 13 years after the 2011 injury.

Another case went back too. A nurse practitioner in Ja’Chim Scheuing v. Lawrence Livermore National Laboratory, Nos. ADJ8655364, ADJ14830172 (WCAB Mar. 27, 2024), a significant panel decision, sought total disability after a 28 percent award. The panel noted that the matter had been taken under submission before the Nunes opinions issued. As the judge’s report described the dispute, the agreed medical evaluator had not reviewed the vocational reports. The panel set the award aside for further development of the record.

What to put in the record

The points below are our reading of what Nunes means in practice. The first four are for a worker who cannot return to the labor market and whose doctor has found some nonindustrial cause.

• Have your lawyer get the vocational report to the doctor. Ask the question Dr. Brown had not been asked: Are the specific limits that prevent retraining caused by the work injury alone, or by something else too? A percentage for a body part may not answer it. In Scheuing, the judge thought a fight over sending those reports should have been listed as a trial issue, so list it.
• Make the vocational report name the reasons and address the doctor’s apportionment. It should identify which restrictions, from which conditions, close off retraining, and why. Separating conditions was the part of Gonzales’s work the Board approved. The report has to deal with any valid apportionment without offering its own.
• Do not rest on a clean work history. The Board said that having no prior work restrictions, doing the job adequately, or losing no wages before the injury does not show that the injury alone caused the disability. Build the argument on what is causing the disability now.
• Test the doctor’s percentage. Ask how and why the condition is causing disability today. An explanation that stops at a diagnosis and a number is open to challenge under Escobedo.
• For the employer’s side, prove the number. To claim the prior-award presumption, the award has to be in evidence, and a vocational percentage cannot substitute for a physician’s reasoned opinion. Nunes rejected an unexplained 10 percent from the State’s own expert.
• Ask for separate findings on each injury. When a specific injury and a cumulative injury overlap, a decision that treats them as one invites the same remand.

For how a vocational opinion can support total disability on a complete record, see our analysis of Valencia. For representation in a disputed permanent disability case, see our California workers’ compensation practice.

Later developments. After this article’s April 7, 2026 date, the California Supreme Court held in Mayor v. Workers’ Compensation Appeals Board, No. S287261 (Cal. Aug. 24, 2026), that the Board’s 60-day deadline to act on a petition for reconsideration under former Labor Code section 5909 is mandatory and that the Board may not equitably toll that deadline. The Scheuing panel acted after 60 days on tolling reasoning that Mayor rejected. Mayor did not name that panel decision or address the Nunes decisions, and we do not know what happened to that award afterward.