A recent Board panel decision has rescinded a trial-level decision in Pantoja v. Jack in the Box; CIGA for Castlepoint National Insurance Co., ADJ9104101 (SLO), Sep. 9, 2024, Decision After Reconsideration.[1] The Board found that applicant had suffered permanent total disability and successfully rebutted the 2005 PDRS using vocational expert reporting.
Defendant’s argument via the vocational expert report that applicant’s lack of English proficiency and educational status should have been considered in determining applicant’s ability to complete in the open labor market was rejected. The Board held it is improper to consider such factors in determining applicant’s inability to work – these factors do not constitute preexisting disabilities.
Applicant is a fast food worker. She claimed an injury to the shoulder, neck and low back following a July 9, 2012, slip and fall. Applicant was provided 58% permanent disability by the QME. The QME, Dr. Pearson, found that applicant’s permanent disability did not preclude her from vocational rehabilitation; however, her psychiatric symptoms might. The parties used Dr. Friedman as the psychological AME. He found all of applicant’s psychiatric symptoms attributable to the injury and would prevent her from returning to her prior employment or work in any capacity.
Applicant’s vocational expert, Laura Wilson, found that applicant would be considered 100% disabled on a psychiatric basis alone and could not find any occupations for which she would be suited beyond sheltered workshop types of environments. Applicant is thus precluded from the labor market and not amenable to vocational rehabilitation according to Ms. Wilson.
Defendant’s vocational expert found applicant had severe deficiencies in English and Spanish literacy/proficiencies based on her scores on vocational tests. The expert also noted applicant’s community has limited vocational opportunities and applicant had no interest in relocating for better opportunities. These “impermissible/nonindustrial factors create definite challenges” to applicant’s employment opportunities in the open labor market.
The workers’ compensation judge found applicant had not rebutted the PRDS and awarded her 68% permanent disability. Applicant petitioned for reconsideration, contending that she had successfully rebutted the schedule and was entitled to a permanent total disability award based on the medical and vocational evidence.
The Commissioners agreed with applicant and awarded her 100% permanent disability on the grounds that she had successfully rebutted the PRDS through vocational evidence that showed applicant had suffered a completed loss of ability to compete in the labor market and was not amenable to rehabilitation due to her industrial injury.
Citing Soormi (Soormi v. Foster Farms, ADJ12346390 (SAC), June 19, 2023, 88 CCC 1125), the Commissioners held that focus on language and educational factors is inappropriate where those factors were not affected by a “pre-existing disability.” They found that applicant had presented sufficient evidence to show applicant was precluded from returning to gainful employment. The panel rejected the defense expert’s conclusions that “impermissible” factors affected applicant’s employability and amenability to rehabilitation. They found that one’s ability to speak English or lack of education is generally not a disability. A vocational expert may only consider applicant’s preexisting disabilities in determining the extent to which the defendant is responsible for applicant’s permanent disability.
The Soormi decision points out that employers receive a discount for hiring unskilled workers through lower TD and PD rates. Thus, applicant’s permanent disability should not be further discounted by the fact that the worker is unskilled. California encourages employer to hire disabled workers by ensuring that the employer is not held liable for preexisting disabilities, while issues of language and education caused by a preexisting nonindustrial disability might properly be the source of apportionment to nonindustrial causes. In the case at hand, applicant was simply an unskilled worker. The defense expert’s attempt to apportion applicant’s vocational nonviability to issues like English and education deficiencies was improper.
The panel, thus, rescinded the WCJ’s Findings & Award and awarded applicant 100% permanent disability.
By Brooke N. Moller, Esq., Associate Attorney, Oakland Office, December 2024.
[1] This is not a Significant Panel Decision and is of information but is not controlling authority.
