WCAB EN BANC DOUBLES DOWN ON REJECTION OF “VOCATIONAL APPORTIONMENT” IN NUNES II

August 31, 2023

The WCAB offered clarity on the complex topic of “vocational apportionment” in an en banc decision issued on June 22, 2023: Grace Nunes v. State of California, Dept. of Motor Vehicles, legally uninsured; State Compensation Insurance Fund (ADJ8210063; ADJ8621818). In that decision, the WCAB held that “vocational evidence must address apportionment and may not substitute impermissible ‘vocational apportionment’ in place of otherwise valid medical apportionment.” In other words, the WCAB found that the concept of “vocational apportionment” is not valid, and may not replace the valid apportionment found by the QMEs or AMEs in a case.

Applicant sought reconsideration of that decision, and the WCAB has now issued another en banc decision denying applicant’s Petition for Reconsideration in Nunes v. State of California, Dept. of Motor Vehicles (Nunes II), wherein it affirms the earlier decision, and offers additional clarity as to the roles of physicians and vocational experts in addressing permanent disability and apportionment.

The WCAB doubled down and made it clear that Labor Code section 4663 requires apportionment determinations to be made by evaluating physicians. Therefore, the evaluating physician will need to review a vocational expert’s report, if one is obtained, and address apportionment in relation to the factors identified by the vocational experts.

If the evaluating physician is unable to provide apportionment or fully explain the “how and why” of apportionment provided, an award of permanent total disability may still issue. However, Nunes I and Nunes II make it clear that vocational experts may not offer competing theories of apportionment in place of valid apportionment provided by QMEs and AMEs.

The WCAB rejected applicant’s arguments that its earlier decision in Nunes I would lead to “pass through” apportionment, where the vocational evaluator feels obligated to simply adopt the medical apportionment and “does not properly provide opinions based on the vocational factors and evidence as they relate to causation.” The panel squarely rejected this concept, noting that vocational experts are not “legally entitled to make” apportionment determinations. They make abundantly clear that apportionment analysis has been delegated to “physicians who are statutorily authorized” under section 4663.

The decision made it clear that the physician’s apportionment opinion must still be substantial evidence in order to be considered valid. However, vocational experts cannot “substitute a competing theory of apportionment in place of otherwise valid legal apportionment.” Vocational experts are free to offer their analysis in an attempt to dispute the physician’s apportionment opinion. Similarly, the QME may also consider vocational evidence in rendering opinions regarding permanent disability and apportionment. The issue of apportionment, however, is not to be determined by a vocational expert.