Jul 11, 2023

The WCAB sets the standard: apportionment by vocational experts must be substantial medical evidence

In Grace Nunes v. State of California, Department of Motor Vehicles (en banc) the applicant underwent vocational testing and an orthopedic evaluation to determine her ability to return into the open labor market. The orthopedic QME along with the vocational specialists opined that the applicant was unable to return to the open labor market entirely due to her industrial injury.  While the QME found medical apportionment to pre-existing conditions, the applicant’s vocational specialist rebutted this finding, stating the applicant’s pre-existing apportioned impairment did not affect her ability to participate in the work force, and thus, only after the instant industrial injuries occurred, was the applicant now vocationally impaired. The defense vocational specialist apportioned 10% to nonindustrial factors. The WCJ followed the findings of the applicant’s vocational expert and issued an un-apportioned award of 100% industrial disability.

The Appeals Board issued an En Banc decision finding the WCJ erred by relying on the vocational specialist because the vocational specialist failed to consider all body parts when he addressed the applicant’s vocational apportionment. By solely focusing on one body part, the vocational specialist discredited prior impairment of other body parts, and failed to consider disability that formerly could not have been apportioned. The WCAB found the vocational specialist failed to determine whether there was substantial medical evidence establishing the asymptomatic condition or pathology was a contributing cause to the applicant’s disability. Further, the WCAB instructed the WCJ to issue a new finding parsing out the cause for each injury.

The Board restated that Labor Code Section 4663 requires a reporting physician to make an apportionment determination. The Commissioners opined vocational apportionment offered by a non-physician is not a statutorily authorized form of apportionment. In addition, apportionment determinations that deviate from the mandatory standards described in section 4663(c) are not a valid basis upon which to determine permanent disability. (Lab. Code, § 4663(c); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Board en banc); Place v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 372, 378-379 [35 Cal.Comp.Cases 525] [not all expert medical opinion constitutes substantial evidence upon which the Appeals Board may rest its decision].) Moreover, a WCJ must consider whether the vocational evidence is substantial, whether it rests upon relevant facts, applies a correct legal theory, and refrains from surmise, speculation, conjecture, or guess. (Lab. Code, § 5708; Place, supra, 3 Cal.3d 372; Owings v. Industrial Acc. Com. (1948) 31 Cal.2d 689, 692 [13 Cal.Comp.Cases 80].)

The Appeals Board iterated vocational evidence may be used to address and sometimes rebut permanent disability. They affirmed that the purpose of permanent disability is to compensate the applicant for both physical loss and the loss of some or all their future earning capacity.  However, vocational apportionment cannot solely rely on the fact that the applicant had no prior work restrictions, or was able to adequately perform their job, or suffered no wage loss prior to the current industrial injury. (Zmek v. State of California, Department of Corrections and Rehabilitation (December 13, 2019, ADJ8493350) [2019 Cal. Wrk. Comp. P.D. LEXIS 552]) or was able to adequately perform their job (City of Petaluma v. Workers’ Comp. Appeals. Bd. (Lindh) (2018) 29 Cal.App.5th 1175, 1194 [83 Cal.Comp.Cases 1869]), or suffered no wage loss prior to the current industrial injury (Acme Steel v. Workers’ Comp. Appeals Bd. (Borman) (2013) 218 Cal.App.4th 1137, 1141 [78 Cal.Comp.Cases 751]).

In summary, an analysis of whether there are valid sources of apportionment is still required even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result.  This decision follows the legal precedence set forth in Lindh and Zmek, supra, upholding the requirement of the opining physician(s) to determine all factors causing disability pursuant to Labor Code Section 4663.

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