The New LeBoeuf Argument: Labor Code section 4662

By
Megan K. Lucchesi

As many may recall, LeBoeuf allowed the use of vocational experts to testify that an injured worker could not be retrained due to their industrial injury and therefore the person totally lost their ability to compete in the open labor market. As such, the person would be deemed 100% permanently disabled. Fortunately, the 2005 permanent disability rating schedule put this issue to rest as the new criteria for determining diminished future earning capacity is now set forth in Labor Code section 4660.

However recent case law has re-opened up the use of vocational experts and the argument of 100% permanent disability based on an applicant’s inability to return to the open labor market due to an industrial injury.

In Baldrige vs. Swinerton, Inc., 2010 Cal. Wrk., Comp. P.D. LEXIS 271, the WCAB did confirm that LeBoeuf does not directly apply to injuries that are subject to the 2005 PDRS. However, the court went on to say that the injured employee’s diminished future earning capacity is one of the core elements of a permanent disability rating. By comparison to Labor Code section 4660(b)(2), the court found that an employee’s permanent disability rating may be affected where the industrial injury causes a total loss of earning capacity because permanent total disability represents a level of disability at which an employee has sustained a total loss of future earning capacity.

In putting this argument into effect, the WCAB panel issued the Boatright v. Argonaut Constructors (ADJ3829595) on October 18, 2010. In Boatright, the WCAB panel reversed a WCJ decision that found the Applicant had a 92% permanent disability and alternatively concluded the Applicant was 100% permanently disabled pursuant to Labor Code section 4662. In crafting their decision, the WCAB relied on the AME report and deposition and the testimony and report of a vocational expert.

In Boatright, the AME found the applicant had signs of cervical cord dysfunction with weakness and sensory loss. Applicant was also in need fo chronic analgesics and could not walk without assistance. The vocational expert determiend that the applicant would be limited to light jobs, offering a sit/stand option such as product assembler, hand packager and insepctor. However due to the applicant’s physical limitations and dependance on medication, the vocational concluded that applicant was physically unable to compete in the open labor market.

The WCJ did not find the applicant to be totally disabled. Although the applicant’s permanent impairment was significant, the WCJ did not find the vocational expert’s testimony persuasive since the expert failed to explore the possibility of the applicant working from him home.

Upon reconsideration, the WCAB determined that the determinations of the vocation expert as well as the facts of the case warranted a 100% permanent total disability pursuant to Labor Code section 4662.

Labor Code section 4662 states:

Following the Boatright logic, I would fully expect applicants to once again bring in vocational experts to assess whether an applicant is totally disabled pursuant to Labor Code section 4662. This has already been seen in Gross vs. Slater Brothers, 2010 Cal. Wrk. Comp. P.D. LEXIS 360. The WCAB in a panel decision of August 2010, reversed a WCJ’s determination that the vocational expert’s testimony was outside the scope of the AMA Guides and could not be considered. The WCAB disagreed and held that a vocational expert’s testimony is allowed to show permanent total disability under the AMA Guides or Labor Code section 4662.

Although LeBoeuf is no longer viable, Labor Code section 4662 opens the door to allow for expert testimony on a person’s ability to compete in the open labor market. In summary, be prepared to see the return of vocational experts.

Please note however that the Bladridge, Boatright and Gross decisions are WCAB panel decisions which are citeable authority. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges