Senate Bill 863 (SB 863) and Senate Bill 899 (SB 899), codified into relevant Labor Code Sections, changed the way California workers’ compensation permanent disability and apportionment are determined, including the use of the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment. The Permanent Disability Rating Schedule (PDRS) was implemented to provide a standardized approach to rating impairment, but since inception Applicants have sought to rebut the schedule to obtain greater awards.
We will address the issue of these attempts, especially in seeking 100% disability, including per a noteworthy panel decision. Although WCAB panel decisions are not binding authority, the WCAB does designate some as noteworthy to assist the workers’ compensation community. One such case is Helper v. County of Sonoma/Health Servs. Dep’t (2022) Cal. Wrk. Comp. P.D. LEXIS 179.
Following the Board’s decision in Helper, the aggrieved Defendant filed a Petition for Writ of Review which was denied by the Court of Appeals. The Court provided a brief comment for the basis of their denial, stating that the holding in Helper did not violate the rule set out in Acme Steel v. Workers’ Comp. Appeals Bd. (2013) 218 Cal. App. 4th 1137, which held medical-legal apportionment to nonindustrial factors must be honored and rejecting a conflicting vocational expert which had sought to ignore nonindustrial apportionment. Helper distinguished Acme Steel by illustrating situations in which medical-legal evaluators and vocational experts may support a total disability finding by concluding the applicant’s loss in earning capacity is solely due to the nonindustrial injury.
Background
In Helper, the WCAB issued a finding that the worker’s injury had caused total disability of 100%, and that such finding was based on the opinions of the worker’s vocational expert, who successfully rebutted the permanent disability rating of 54%. Defendant filed a Petition for Reconsideration contending the WCJ’s finding of 100% disability was not supported by the evidence, given the Agreed medical Examiner’s (AME’s) opinion that 15% of the applicant’s disability was pre-existing and non-industrial. Defendant further argued apportionment is required when the AME finds disability resulted from both non-industrial and industrial causes.
The relevant facts are as follows: The applicant Vincent Helper, suffered an injury to his right foot and ankle in the course of his employment for the County of Sonoma. The parties utilized Marvin Zwerin, M.D. as the Agreed Medical Evaluator in the case. The AME diagnosed the applicant with Cerebral Palsy, diabetes, mellitus, short achilles tendon, chronic pain of the right ankle and joints of the foot, and pes planus. He issued a 50% Whole Person Impairment due to gait derangement, the routine use of two canes or two crutches, and the use of a short-leg brace. The AME apportioned 15% to the applicant’s pre-existing need for a short-leg brace prior to the onset of his industrial injury. (Id. at pp. 3-4).
The AME imposed the following work restrictions in his report:
- No sit/stand more than 10 minutes;
- No walking without the use of a wheeled walker;
- Alternate sit/stand/walk as dictated by pain;
- No squatting, kneeling;
- No climbing stairs or ladders;
- No lift/carry more than 5 pounds for more than 5 feet not to exceed once per hour based solely on need for walker.
Following the issuance of the AME’s report, applicant’s vocational expert requested clarification as to the work restrictions. The AME clarified that the applicant’s residual functional capacity is at most sedentary post-injury, with all six of the limitations being exclusively the result of his industrial injury. He further added, but for the industrial injury, the applicant would be fully functional with a brace and would not have the need for a wheelchair or walker. (Id. at pp. 4-5).
Defendant retained their own vocational expert, who relied on the opinions of the AME and a prior Panel Qualified Medical Evaluator in the case. She concluded that the applicant did have the medical capacity to benefit from vocational rehabilitation services and to be amenable to rehabilitation. (Id.). Defendant’s vocational expert issued a supplemental report considering the work restrictions imposed by the AME and concluded that apportionment of employability and earning capacity based on medical factors was 100% industrial and 0% nonindustrial. A trial was held on the issues of permanent disability, apportionment, and a number of other issues. The Findings and Award issued found that the strict AMA Guides rating of 54% permanent disability had been rebutted by applicant’s vocational expert, and that applicant’s injury caused total permanent disability of 100%.
Discussion
Defendant sought reconsideration from the Findings and Award. In brief, the Defendant argued 1) Applicant failed to sustain his burden of proof to overcome the Labor Code Section 4600 presumption regarding permanent disability; 2) Applicant’s vocational expert’s report is not substantial evidence 3) Apportionment is applicable to cases where 100% permanent disability is found pursuant to LeBoeuf; 4) Apportionment is required when the AME finds disability resulted from both non-industrial and industrial causes; and 5) the WCJ’s finding of 100% disability is not supported by the evidence given the AME’s opinion that 15% of the applicant’s disability is pre-existing and non-industrial.
The WCAB denied Defendant’s Petition for Reconsideration for the reasons discussed below.
In addressing the Petitioner’s argument that the Applicant failed to sustain his burden of proof to overcome Section 4600, the WCAB turned to a long-recognized rule expressed in LeBoeuf v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 234 [193 Cal. Rptr. 547, 666 P.2d 989], which provides that a schedule rating has been effectively rebutted when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than reflected in the employee’s scheduled rating.
The Board further looked to cases which narrowed the rule in LeBoeuf, finding the primary method for rebutting the scheduled rating is based upon a determination that the injured worker is not amenable to rehabilitation and, for that reason, the employee’s diminished future earnings must be directly attributable to the employee’s work-related injury and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education. Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal. App. 4th 1262, 1275, 129 Cal. Rptr. 3d 704, 713, 76 Cal. Comp. Cases 624, 2011 Cal. App. LEXIS 988 *23.
Next, the Board addressed Petitioner’s contention that the applicant’s vocational expert’s report was not substantial medial evidence. It was determined the report offered a comprehensive assessment by the expert which relied on his own objective testing, substantial medical evidence of the AME, and an individualized valuation of the applicant’s employability to effectively rebut the scheduled rating. (Id. at p. 8). The Board adds, the court then relied on this evidence to determine that the applicant is not amenable to vocational rehabilitation and the medical work restrictions preclude him from full-time employment. Accordingly, the WCJ had relied on substantial evidence to support a finding that the applicant was 100% permanently disabled.
Lastly, the Board addressed the Petitioner’s arguments regarding apportionment, given the AME’s finding that the applicant’s disability resulted from both non-industrial and industrial causes. Specifically, the Petitioner asserted that a finding of 100% permanent disability would be inappropriate given a medical-legal finding of 15% apportionment to non-industrial factors. However, the Board found that the AME’s finding of 15% apportionment was already factored into the court’s determination of Permanent Disability. (Id. at p. 9). They explained, after apportionment, there was a rebuttable schedule rating of 54%, which the WCAB agrees was successfully rebutted by the applicant’s vocational expert. They added that the Defendant’s own vocational expert report failed to impeach the conclusions of the applicant’s vocational expert. Further, the Defendant’s expert failed to explain how the applicant would be employable given the work restrictions imposed by the AME.
Accordingly, the WCAB did not find the Petitioner’s arguments to disrupt the ultimate conclusion that the schedule rating was rebutted, and the applicant was 100% permanently disabled.
Takeaway
Helper illustrates the importance of being proactive throughout the medical-legal process, and specifically in the face of reports which impose serious work restrictions. The WCAB in Helper makes it clear that apportionment to a non-industrial cause is not enough to guarantee against a finding of 100% permanent disability.
Helper can be seen as a reminder for Defendants to closely evaluate the work restrictions imposed on the applicant which could render them unable to compete in the open labor market. Defendants should develop the evidentiary records to establish that the work restrictions imposed can be apportioned, at least in part, to nonindustrial factors.
Helper highlights the significance vocational expert reports often play to rebut the PDRS, and what the WCAB considers to be substantial evidence when relying on these reports to support findings of 100% permanent disability to rebut the permanent disability rating schedule.
