Javier Magana — ADJ11271941

Applicant Javier Magana, a houseman, sustained an admitted industrial injury to his lumbar spine and left hip. The WCJ found permanent total disability (100%), concluding that the standard AMA Guides impairment was rebutted by vocational evidence (David Van Winkle's report) proving applicant could not compete in the open labor market and was unamenable to vocational rehabilitation. Defendant sought reconsideration arguing the WCJ should have relied on its vocational expert Keith Wilkinson instead. The majority (Kelly and Dodd) denied reconsideration, adopting the WCJ's Report, finding Wilkinson's examples of sedentary jobs failed to account for PQME Dr. Gjerdrum's restriction limiting applicant to two hours of sitting per day, and that defendant waived any argument that applicant was not permanent and stationary. Deputy Commissioner Sussman dissented, arguing applicant's condition was not yet permanent and stationary given an approved and pending hip replacement surgery, rendering the medical and vocational reporting non-substantial evidence.