With the arrival of summer, we find ourselves in a time of longer days, warmer temperatures, and a calendar filled with summer fun. Summer solstice was on June 21st. As the longest day of the year, summer solstice marks the official start of summer.
The Fourth of July is also right around the corner and is a time to commemorate the Declaration of Independence, which was ratified by the Second Continental Congress on July 4, 1776, and established the United States.
As we enter the upcoming holiday, we at Mullen & Filippi hope that each of you can get together with family and friends to enjoy a parade, fireworks, or a barbeque. We wish you a safe and happy Fourth of July!
EMPLOYER’S REJOICE WCAB REJECTION OF APPORTIONMENT THEORY
Since the passing of Labor Code (LC) Section 4663, Vocational Experts have slowly developed a theory of so-called “vocational apportionment” that brought the disability analyses more in line with the state of law prior to the passage of LC Section 4663. Under the prior law, pre-existing disability or evidence of modified work performance were a prerequisite to apportionment.
LC Section 4663 changed the analysis to one of causation, where even asymptomatic conditions could be a source of apportionment if they were a current medical cause of disability. Despite the passage of LC Section 4663, many vocational experts continued to use a “but for” test that looked at whether prior symptoms or conditions interfered with the ability to work before the injury – the question frequently asked by vocational experts was “but for” the injury, would Applicant have had access to the labor market? Many trials were set, and settlements reached on the basis of this theory of “vocational apportionment.”
Last month, the WCAB confirmed what members of the defense community have long been arguing – that the “vocational apportionment” theory pushed in cases like Target Corp. v. WCAB (Estrada) was an end run around the new law of apportionment set forth by LC Section 4663.
NUNES V. STATE OF CALIFORNIA, DEPT. OF MOTOR VEHICLES (En Banc)
On June 22, 2023, the Workers’ Compensation Appeals Board (WCAB) issued an en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (hereinafter, Nunes) to resolve the issues of whether vocational experts must address apportionment when a party attempts to rebut the rating schedule using a vocational expert, and whether “vocational apportionment” is a valid legal concept.
In Nunes, the applicant sustained a cumulative trauma type injury through September 13, 2011, to her cervical spine and upper extremities. Liability was admitted.
The panel QME assigned Whole Person Impairment (WPI) percentages for her cervical spine, left upper extremity, and carpal tunnel syndrome. The panel QME apportioned 40% of Applicant’s impairment for her cervical spine to non-industrial degenerative changes and 60% of Applicant’s impairment for carpal tunnel to non-industrial diabetes. The panel QME opined that she did not believe Applicant was employable in the open labor market.
Applicant’s vocational expert opined that she was not amenable to vocational rehabilitation and that 100% of Applicant’s loss of future earning capacity was due to the date of injury at issue. Although Applicant’s expert acknowledged the panel QME’s opinion on apportionment, he opined that “Vocational apportionment is not the same as medical apportionment.”
Defendant’s vocational expert similarly opined that Applicant was not employable in the open labor market. However, Defendant’s expert opined that “at least 10% vocational apportionment” from non-industrial medical factors contributed to Applicant’s inability to compete in the open labor market.
The trial judge found that Applicant sustained a cumulative trauma type injury through September 13, 2011, to her cervical spine, upper extremities, and left shoulder resulting in a 100% permanent total disability.
Defendants appealed and the Appeals Board granted the petition for reconsideration.
The Appeals Board held that:
- Labor Code Section (LC) 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for “vocational apportionment.”
- Vocational evidence may be used to address issues relevant to the determination of permanent disability.
- Vocational evidence must address medical apportionment and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.
The case was remanded back to the trial level for further development of the record.
PRACTICE TIP: This case is significant because the Appeals Board has defined what is required for vocational experts’ opinions to constitute substantial vocational evidence. Practitioners should know this decision, as well as the takeaway factors, whenever vocational evidence is at issue.
For a detailed analysis of the Nunes decision, please click the link below.
CA ASSEMBLY PASSES BILLS TO EXEMPT UR TIMEFRAMES FROM TD CAP AND TO EXPAND PTSD PRESUMPTION
On May 25, 2023, the California Assembly voted to pass AB 1213, which would exempt time spent from successfully challenging a medical treatment denial from counting toward the 104-week cap on temporary disability indemnity.
The Assembly also passed AB 1145, which would extend the PTSD presumption to some state employees working for State Hospital Departments, Corrections and Rehabilitations, and Developmental Services, including state nurses, psychiatric technicians, and medical and social services specialists.
The deadline for each chamber to pass bills was June 2, 2023.
BOARD PANEL GRANTS INJURED WORKER’S PETITION TO SELF-ADMINISTER MSA
In Villalpando v. Doherty Brothers, 2022 (noteworthy panel decision), the Appeals Board granted Applicant’s petition to modify the terms of a previously approved Compromise and Release to allow for a change of administration of his Medicare Set-Aside (MSA) from professional administration to self-administration.
In doing so, the Appeals Board provides a roadmap of the applicable legal standards to decide a contested petition to allow for change of administration.
For a detailed analysis of the Appeals Board decision, click the link below.
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months are available on our website at www.mulfil.com/bulletins.