Parker, Kern, Nard & Wenzel
Legal Updates


The Vocational Rehabilitation Expert Witness Pendulum Swings Again

By
Darren Van Doren

The First District Court of Appeal recently handed down a decision regarding vocational rehabilitation expert opinions which provided some clarification on the methods that can be used in an attempt to rebut the 2005 Permanent Disability Rating Schedule (“Schedule”). The case of Contra Costa County v W.C.A.B. (“Dahl”) reversed the WCAB which had held that applicant successfully rebutted the Schedule using the "second method" of rebutting the Schedule as provided for in the Ogilvie III case. This method is often referred to as the LeBoeuf analysis. That is, a vocational rehabilitation expert can be used to provide an opinion that, as a result of the industrial injury, an applicant is not amenable to rehabilitation and therefore has a greater loss of diminished future earning capacity than is provided for in the Schedule.

Please recall that in Ogilvie III, the Court held that an applicant's rebuttal evidence could not be based on impermissible factors such as education, general economic conditions and proficiency in speaking English. Instead of providing an analysis as to the level of diminished future earning capacity based on factors specific to this applicant, the applicant's vocational rehabilitation expert provided opinions which were based on "similarly situated employees". The WCAB held that providing such an analysis did not run afoul of the prohibition on the use of impermissible factors as set forth in Ogilvie III because those factors were never considered in the first place. In other words, the vocational rehabilitation expert avoided the need to address how any non-industrial factors such education, economic conditions, etc. may have contributed to the applicant’s overall picture because the applicant's individual situation was not considered. Instead, applicant’s expert focused on how applicant's future earning capacity was diminished as compared to "similarly situated employees".

If you believe this approach sounds similar to the method used by the Schedule itself, then you are on the same page as the First District Court of Appeal. The WCAB's holding that the "similarly situated employee" approach is valid was reversed:

“The gravamen of Dahl's rebuttal is that her expert's analysis of the earning capacity-based on the earnings loss of a group of individuals that the expert identified as more similarly situated to Dahl than the group identified in the Schedule for someone with her characteristics-is superior to the method and rating called for by the statute. This approach is at odds with Ogilvie, which rejected a similar attempt to simply substitute a vocational expert's or judge- or board-preferred methodology for the statutorily prescribed rating system.”

Unfortunately, the issue of how the diminished future earning capacity percentage is to be used in the overall permanent disability rating was not fully addressed. Applicant's expert simply substituted the percentage loss of future earning capacity for the right shoulder in place of the final scheduled rating. The Court of Appeal reversed. There was no mention of exactly what the Court would view as an acceptable use of the diminished future earning capacity percentage due to the fact the Court did not need to address the issue. In other words, the Court found that because the evidence showed applicant was amenable to rehabilitation it was impossible for the Schedule to be rebutted. As a result, there was no need to address how the diminished future earning capacity percentage was to be used. However, the Court did comment:

“We are skeptical of WCAB's conclusion that an employee may invoke the second Ogilvie rebuttal method where the inability to rehabilitate results in less than a 100-percent permanent disability. However, we need not decide this issue since the County did not seek a writ from the WCAB decision adopting the partial impairment rule. In any event, even if an employee's ability to rehabilitate need only be impaired (and not eliminated) in order to rebut the schedule, Dahl failed to make such a showing here. As discussed above, both Dahl and the County's rehabilitation experts agreed Dahl was a good rehabilitation candidate, and the evidence suggests she can increase her earning potential through retraining.” (Emphasis added)

This suggests that the use of such experts should only be allowed where an injured worker is attempting to prove a 100% permanent disability rating. The Court in Dahl reminds us that:

“Ogilvie signaled that it would be a rare case in which an applicant or employer could rebut a scheduled rating.”

We are now left with guidance that requires an individualized analysis of the applicant. The “similarly situated employee” approach has been eliminated. Therefore, defenses based on the use of impermissible factors are still in play. We also know that applicants who would benefit from vocational rehabilitation cannot jump the first hurdle:

“The first step in any LeBoeuf analysis is to determine whether a work-related injury precludes the claimant from taking advantage of vocational rehabilitation and participating in the labor force. This necessarily requires an individualized approach.”

The bottom line is that the Court appears to have swung the pendulum back in the opposite direction. Following the Ogilvie III decision, the frequency of attempts at rebutting the Schedule based on a LeBoeuf analysis declined for a time, at least from this attorney’s perspective. It also appeared, at least initially, that Ogilvie III stood for the proposition that the use of vocational rehabilitation experts to rebut the Schedule would be limited to those cases where an injured worker was alleging 100% permanent total disability. Indeed, the Trial Judge in Dahl had originally held exactly that. Other judges interpreted Ogilvie III the same. Slowly but surely, the “partial impairment rule” came into view so that the frequency of such rebuttal attempts increased substantially. If an applicant must first show they are not amenable to rehabilitation, then is the applicant, by definition, arguing for a 100% permanent disability finding? If not, then we must further define “amenable to rehabilitation” and ultimately answer the question of whether “an employee's ability to rehabilitate need only be impaired (and not eliminated) in order to rebut the schedule.” It will be no surprise to hear the phrase “partial impairment rule” being used more often where vocational rehabilitation experts are involved. The quest for more clear guidance in this area of Workers’ Compensation continues.