Case BriefVocational Vouchers / RTWFTrial Judge Refuses to Grant Defendant’s “Motion for Summary Adjudication” Excluding Vocational Reports

August 9, 20180

(Worker’s Compensation Judge Eugene Gogerman’s Findings of Fact/Opinion on Decision March 27, 2018)

Applicant sustained injury to his left shoulder and left hip on November 18, 2014 while working for defendant as a certified nursing assistant.  As part of his investigation and discovery, applicant’s attorney retained Jeff Malmuth as a vocational expert.

Defense counsel objected to the use of the vocational expert and advised that defendant would object to any bills in connection with his work on the case.

The issue was submitted to Worker’s Compensation Judge Gogerman for decision.  The judge framed the issue as whether vocational expert reports are relevant and admissible following the 2013 revision of Labor Code Section 4660.1.

Defendant argued that the 2013 revision to Labor Code Section 4660.1 eliminated the possibility of rebutting the scheduled permanent disability rating through the use of vocational evidence under either Ogilvie or LeBoeuf.  Defendant supported its argument by citing to the WCAB Panel decision in Farmer vs. City of Fremont and a trial decision of Workers’ Compensation Judge Shields in Cardenas vs. Hayward Sisters Hospital.

Judge Gogerman agreed that new Labor Code §4660.1 no longer expressly considers an injured workers’ ability to compete in the open labor market or diminished future earning capacity in determining the level of permanent disability.  However, he was of the opinion that vocational evidence may still be relevant for non-Ogilvie purposes.  He also noted that the same reform legislation that amended Labor Code §4660.1 also provided a new Labor Code §5703(j) relating to the procedure for submitting the opinions of vocational experts as evidence.  He stated that “I find it improbable that this entirely new set of procedural rules would have been enacted if there was an expectation that vocational evidence would concurrently be rendered obsolete.”

Finally, Workers’ Compensation Judge Gogerman stated that the defendant’s Petition was premature.  In essence, defendant was making a Motion for Summary Adjudication regarding the admissibility of trial evidence.  The Judge was unwilling to grant that relief and prohibit applicant’s attorney from fully preparing his case.  To do so would jeopardize applicant’s due process rights.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.

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