Workers’ Compensation · Primary-source case analysis

Nunes: Why Vocational Evidence Cannot Replace Medical Apportionment

By Aneeta Mishra and Timothy Chan

Published April 13, 2026 Updated October 3, 2026

Decision: Nunes v. State of California, Department of Motor Vehicles, Nos. ADJ8210063 and ADJ8621818 (WCAB Aug. 29, 2023) (en banc).

The two kinds of evidence before the Board

The August 2023 en banc Nunes opinion denied reconsideration of an earlier remand involving both specific and cumulative injuries. The dispute exposed a recurring question: A physician assesses medical causation and apportionment under Labor Code section 4663, while a vocational expert assesses the practical effect of established restrictions on work and retraining. Those inquiries interact, but they are not interchangeable. Nunes, slip op. at 1–3.

Section 4663 assigns apportionment to physicians

The Board reaffirmed that a reporting physician must determine the approximate percentages of permanent disability caused by the industrial injury and by other factors. Vocational evidence may address issues relevant to permanent disability, but the statute does not authorize a vocational expert to impose a separate “vocational apportionment” scheme over otherwise valid medical apportionment. Id. at 1, 4–5.

A vocational report must address the medical record

A vocational expert may assess rehabilitation feasibility, labor-market participation, and the effect of documented restrictions. The expert’s report still must engage with valid medical apportionment; it cannot silently treat all lost earning capacity as industrial. At the same time, Nunes does not require acceptance of an unsupported physician’s opinion. Both kinds of evidence need a reasoned factual foundation. Id. at 3–6.

The remand left the outcome open

The Board denied reconsideration and left the case at the trial level for a better-developed record. It expressed no view on whether the particular qualified medical evaluator’s apportionment opinion was valid. The opinion therefore supplies a rule for evaluating evidence, not an automatic disability rating or a finding that either party’s vocational analysis wins. Id. at 2, 7. For the separate question of what follows when medical apportionment is unreliable, see our analysis of the invalid-opinion record.

Key takeaways

• Medical apportionment is a physician’s statutory task.
• Vocational evidence can explain disability and retraining consequences without inventing a competing apportionment formula.
• A valid medical opinion and a vocational report must each rest on a reasoned record.
• The August order denied reconsideration but did not fix the ultimate permanent-disability result.