WCAB Rejects Concept of “Vocational Apportionment” in Rare En Banc Decision
June 23, 2023
Further Restrictions on Vocational Apportionment
As most workers’ compensation practitioners can attest, vocational evidence has seen a resurgence in recent years, as the applicant’s bar attempts to obtain Awards of 100% permanent total disability. One unfortunate side effect of this resurgence, is the development of the complex concept of “vocational apportionment.”
Thankfully, the WCAB has offered much-needed clarity on this complex topic in a recent 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 Nunes, the WCJ issued an unapportioned Award of 100% permanent and total disability. Applicant alleged two injuries: a September 13, 2011, injury to the neck, upper extremities and left shoulder, as well as a cumulative trauma through September 13, 2011 to the bilateral upper extremities. Both parties’ vocational rehabilitation (VR) experts, as well as the QME, agreed that applicant was unable to compete in the open labor market and was not amenable to vocational rehabilitation. The WCJ found the applicant had rebutted the scheduled rating, and awarded 100% permanent total disability.
However, the QME provided unrebutted apportionment of 40% to nonindustrial degenerative changes for the cervical spine disability, and 60% to preexisting nonindustrial factors for the carpal tunnel syndrome.
Applicant’s VR expert opined that vocational apportionment was 100% industrial and attributable to the specific injury of September 13, 2011. Defendant’s VR expert opined that there was at least 10% vocational apportionment to non-industrial medical factors.
The defendant petitioned for reconsideration, arguing among other things that the WCJ’s finding did not comply with the requirements of Labor Code section 5313, and that substantial medical evidence supported apportionment to non-industrial factors. Ultimately, the Appeals Board rescinded the F&A and returned the matter to the trial level for further proceedings, after finding that neither VR expert report met the threshold for substantial evidence. Applicant’s VR expert did not adequately consider the issue of apportionment and defendant’s VR expert was speculative as he did not explain how he came to the 10% apportionment opinion.
However, the real importance of this decision lies in the Board’s holding 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 finds that the concept of “vocational apportionment” is not valid, and may not replace the valid apportionment found by the QMEs or AMEs in the case. The decision takes care to not disturb the progeny of case law permitting vocational evidence to be used to rebut the PDRS, but provides clarity as to the concept of “vocational apportionment,” which was given a spotlight by the WCAB’s previous decision in Gonzalez v. Northrop Grumman (ADJ9689895).
In order to be substantial evidence, the WCAB holds that a VR expert’s opinion must adequately address apportionment in a fashion similar to that of medical-legal evaluators: they must disclose their familiarity with the concepts of apportionment and they must set forth in detail the basis of their opinion, and may not rely on facts that are not germane, on inadequate medical histories, or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. Ultimately, VR expert opinions on apportionment are held to the same standard as medical-legal opinions.
Notably, the Board provides examples of reliance upon facts that are not germane. Assertions that applicant’s disability is solely attributable to the industrial injury because 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 are not permissible inquiries. Therefore, VR experts can no longer reject medical-legal apportionment by simply citing factors that the applicant did not require any work restrictions or did not have any wage loss before the industrial injury.
It appears the Appeals Board may be starting to rein in the recent resurgence of VR experts being used to rebut the PDRS. The Board offers a slight glimmer of hope for defendants by requiring VR experts to address and consider valid medical apportionment, including an evaluation of all factors of apportionment such as asymptomatic prior conditions. While medical apportionment may defeat a VR expert report, defendants still hold the burden of proving valid medical apportionment. The WCAB also notes that a vocational evaluator may still “parse” the different sources of impairment; for example, where unapportioned psychiatric disability could stand alone as the sole basis for permanent disability, vocational evidence can “distinguish between multiple injured body parts.”
Vocational evidence undoubtedly increases the cost and duration of litigation; however, the price of an unrebutted or inadequately challenged VR expert could end up being much more costly in the form of a 100% permanent total disability Award. The Nunes case thankfully adds one more tool to the kit for defense of these costly claims.
Aleah McGraw, Associate Attorney of our LFLM – San Francisco Office
Laughlin, Falbo, Levy & Moresi, LLP.