Do you remember when vocational rehabilitation experts were being hired by applicant attorneys in an increasing number of cases to rebut the 2005 Permanent Disability Rating Schedule? The whole dispute gave rise to a series of court opinions that we all know as Ogilvie. The last decision is commonly known as Ogilvie III and appeared to place such strict requirements on rebutting the 2005 Permanent Disability Rating Schedule that many considered the use of vocational rehabilitation experts as a non-starter unless the argument was for permanent total disability, i.e., a 100% Award. In fact, here’s what one trial judge had to say about this issue as reflected in the Dahl v. Contra Costa County panel decision:
“After trial, I determined that, in invalidating the formulas derived by the Appeals Board in Ogilvie, the Court of Appeal effectively nullified a numerical analysis of earning capacity, and without such an analysis the only means of rebuttal, using vocational evidence, is in proving total disability by means of showing an inability to participate in vocational rehabilitation…”
Not so. In Dahl, WCAB held that Ogilvie does not preclude a finding of permanent disability less than 100% by way vocational rehabilitation expert opinion. A LeBoeuf type analysis in cases of partial permanent disability may still be used and requires expert opinion on the “effect of injury’s impairment on worker’s amenability to rehabilitation and effect of that on DFEC.”
Well, now that we are back to square one, what impact does a medical opinion that some of the permanent impairment is due to non-industrial factors have in the context of a LeBoeuf type analysis provided by a vocational rehabilitation expert? One appellate case, Acme Steel v. WCAB, has confirmed that the trial judge must factor in the apportionment opinions when considering vocational rehabilitation expert opinion. In Acme Steel, the applicant ended up requiring cochlear implants to address substantial hearing loss. The trial judge relied on the vocational rehabilitation expert’s opinion and found that the “appearance of the contacts and wires and shaved head spots associated with the implant, combined with the various medical limitations renders the Applicant unemployable and thus he has a complete loss of earning capacity.” The WCAB denied Reconsideration. On appeal, the Court reversed the decision based in part on the trial judge’s failure to address apportionment. The Court held the opinions on apportionment to be substantial evidence and annulled the Award:
“Faced with this unrebutted substantial medical evidence from the AME, the WCAB should have parceled out the “causative sources–nonindustrial, prior industrial, current industrial–and decided the amount directly caused by the current industrial source.”
Although the prospect of increased litigation in the area of vocational rehabilitation expert opinion will cause delay in case resolution there is some hope in light of the requirement that apportionment be addressed. In the panel decision of Brewer v. California Department of Corrections High Desert State Prison, it has been held that where a vocational rehabilitation expert opines that an injured worker is unemployable based on medical evidence “the vocational expert must apportion that “vocational” disability in the same ratio as the medical disability.” The Brewer decision also holds that when a vocational rehabilitation expert is used, it is the injured worker’s burden of proof to show what portion of the overall impairment is due to industrial and non-industrial factors. This is an exception to the general rule that defendant has the burden of proof on apportionment. Some defense attorneys have already noticed an increase vocational rehabilitation experts being hired by applicant attorneys and some of the decisions above are obviously the reason. However, in many cases it will still be a significant challenge for applicants to rebut the 2005 Permanent Disability Rating Schedule as apportionment must be addressed.