Brenda Lee sustained an industrial injury on July 21, 2014 to her back, hips and left leg while employed by the Employment Development Department. Her case was resolved on May 14, 2018 by stipulation for 20% permanent disability based upon the rating of 50% (15.03.01.00 – 28 – 39 – 112D – 33 – 40) 20%.

Less than two months later, (July 6 2018), Lee filed a Petition to Reopen and subsequently obtained a vocational evaluation with Frank Diaz who opined that Lee was unable to return to work in the open labor market.

Dr. McGahan served as the panel qualified medical examiner. In his April 19, 2019 report Dr. McGahan found applicant to be TTD as she had recently has a spinal fusion. He re-evaluated applicant on October 30, 2019 and found applicant to be permanent and stationary at the time of evaluation. He opined that applicant continued to have 28% WPI and also found that applicant had a 3% impairment for her right and left hip due to her industrially related bursitis. He specifically mentioned that applicant’s osteoarthritis of the hips was not due to the industrial injury.

The WCJ found that Lee sustained 26% permanent disability based upon the PQME reporting of Dr. McGahan and that the reporting of the vocational evaluator was not substantial evidence to be relied upon.

The WCAB denied her Petition for Reconsideration in the panel decision of Lee v California Employment Development Department.

The issue in this case is whether applicant’s vocational evidence constitutes substantial evidence to support the conclusion that applicant was permanently totally disabled due to her inability to benefit from vocational rehabilitation.

Throughout Dr. McGahan’s reporting, applicant’s work restrictions remained essentially the same. Lee was required to alternate sitting and standing every 10 minutes, no lifting, pushing, or pulling greater than 20 pounds, and a 10-minute break every hour. Dr. McGahan later added a restriction of no repetitive bending and squatting.

Mr. Diaz interpreted this restriction as follows: “Ms. Lee’s need to take ten (10) minute breaks every hour is significantly labor disabling as she would require breaks totaling eighty (80) minutes per day. Ms. Lee’s need to take a ten (10) minute break every hour and potentially leave her work station during these breaks could not be readily accommodated in the open labor market.”

However, in his May 24, 2017 report Dr. McGahan explained the restriction as needing to “alternate tasks as well as stretching. I do not believe that Ms. Lee has to clock out and take an off the clock break. It is my professional opinion that through an alternate task with an allowance for stretching, she would be able to accomplish this break while on the clock.”

Mr. Diaz did not review the May 24, 2017 report by Dr. McGahan and was therefore unaware of this important distinction in the restriction.

In Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97 the panel noted that “reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Appeals Board’s findings if it is based on surmise, speculation, conjecture or guess.”

Mr. Diaz’s vocational evaluation was not substantial evidence on the issue of permanent disability in part because Mr. Diaz’s reporting was based upon a misinterpretation of applicant’s work restrictions.