The New LeBoeuf Argument: Labor Code section 4662
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
Labor Code section 4662 states:
Any of the following permanent disabilities shall be conclusively presumed to be total in character:
(a) Loss of both eyes or the sight thereof.
(b) Loss of both hands or the use thereof.
(c) An injury resulting in a practically total paralysis.
(d) An injury to the brain resulting in incurable mental incapacity or insanity.
In all other cases, permanent total disability shall be determined in accordance with the fact. (emphasized)
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
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