Can a vocational expert’s opinion on apportionment supersede and/or replace medical apportionment determined by a treating or evaluating physician for the purposes of total permanent disability? The answer is a resounding “No.” In Nunes v. California Department of Motor Vehicles (2023), the Appeals Board held the following:
-
Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code does not make a statutory provision for “vocational apportionment.”
-
Vocational evidence may be used to address issues relevant to the determination of PD.
-
Vocational evidence must address apportionment and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.
Applicant, a DMV Field Representative, claimed two admitted industrial injuries while employed by defendant: a 9/13/11 injury to the neck, upper extremities, and left shoulder and a cumulative trauma injury through 9/13/11 to her bilateral upper extremities.
On 5/17/16, an Orthopedic QME, Dr. Melinda Brown, opined that the applicant had 100% industrial causation for the left shoulder and 60% industrial causation for the cervical spine. The QME apportioned the remaining 40% to preexisting degenerative factors. The QME further ascribed the carpal tunnel symptoms to the cumulative trauma with 40% industrial causation and 60% apportioned to nonindustrial diabetes. On 3/16/21, the QME issued a reevaluation report opining that she did not believe Applicant was employable in the open-labor market based on pain and lack of function.
On 6/18/21, Applicant’s vocational expert, Gene Gonzales, evaluated applicant and issued a report finding a 100% loss of access to the open labor market. He acknowledged the QME’s apportionment opinion but opined that vocational apportionment is not the same as medical apportionment and that her preexisting degenerative conditions had zero percent impact on her earning capacity.
On 1/31/22, defense vocational expert, Steven Koobatian, evaluated the applicant and agreed her employability in the competitive labor market was unlikely, but detailed her nonindustrial factors of apportionment as identified by the QME and opined that 10% vocational apportionment from non-industrial medical factors was attributable to her inability to compete in the open labor market.
The WCJ found that she was entitled to an unapportioned award of 100% industrial disability based upon there being no evidence of previous loss of earnings capacity.
Defendant filed a Petition for Reconsideration.
The Appeals Board discussed that Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for same without any statutory provision for “vocational apportionment,” explaining that employers are only liable for that portion of Permanent Disability attributable to a current industrial injury. The Panel further found that “vocational apportionment” offered by a non-physician is not a statutorily authorized form of apportionment.
The Appeals Board also discussed and affirmed that vocational evidence CAN be used and submitted in order to address issues relevant to the determination of permanent disability. The Appeals Board noted that an evaluating physician must consider the vocational evidence as part of their determination of permanent disability including feasibility for vocational rehabilitation, whether the reasons underlying non-feasibility for it arise solely out of the present industrial injury or are multifactorial.
Finally, though vocational evidence may be utilized to assess factors of permanent disability, such evidence must consider valid medical apportionment. Where there is evidence of prior disability, unrebutted, the WCAB should parcel out the causative sources and decide the amount directly caused by the current industrial source. Therefore, factors of apportionment must be considered even where an injured worker is permanently and totally disabled and unable to participate in vocational retraining. According to the Panel, the law requires evaluation of ALL factors of apportionment as long as supported by substantial medical evidence regardless of whether they were the result of pathology, asymptomatic prior conditions, whether those factors caused diminished earnings, work restrictions, or inability to perform job duties and even when applicant is deemed not feasible for vocational retraining and is 100% totally permanently disabled.
In this case, the Panel concluded both vocational experts and the QME agreed that applicant was not feasible for vocational retraining, so she was totally permanently disabled. However, Applicant’s vocational expert’s report did not adequately consider the issue of apportionment and engaged in speculation. Similarly, the defense vocational expert’s report was not substantial evidence on apportionment as he did not explain how he arrived at the 10% figure. Therefore, the WCJ did not rely on an adequate and completely developed record. The Findings & Award failed to adequately address the issues submitted for decision, including permanent disability and apportionment, for EACH INJURY claimed by applicant and did not explain in detail the WCJ’s analysis as to each injury and the associated issues and finally, failed to cite the evidentiary record or legal authority.
By April Woods, Esq., Associate Attorney, Chico and Fresno Offices, October 2023
