First, 2 WCJ's (one retired) ruled the applicant had a 28% PD, then changed that to 38% after cross-examination of the DEU rater. Then, the employer filed for reconsideration and the recon panel reduced the award back down to 28%.
So the applicant filed a writ with the Fifth District arguing that the reduction by the WCAB panel lacked substantial evidence.
The original 28% awards by the two WCJ's had been based on the subjectives being "out of proportion" despite the DEU's higher 38% rating. But the WCJ changed his mind after a first reconsideration resulted in the matter being remanded for cross-examination of the rater. Following that hearing, the WCJ adopted the rater's 38% PD figure.
The matter was again sent to the WCAB on reconsideration and a panel ruled that 28% was a more accurate rating.
In this unpublished decision, the appellate court ruled that just because the WCAB recon panel drew a different conclusion from the same evidence than what the WCJ had determined, there was no legal basis to disturb the WCAB's re-evaluation of the evidence.
The Court said that the evidence could have produced a rating of anywhere from 10% to 38% and 28% was thus well within the ballpark, affirming the WCAB panel's lower rating.
The case is Rivera-Sanchez v. WCAB (Foster Farms).
To read the full opinion,
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