Can an employer compel an employee’s attendance at an evaluation by a vocational rehabilitation expert?  In the case of Charles Holz v. Gottchalks, the applicant noticed his intention to present vocational rehabilitation expert testimony in an effort to rebut the Diminished Future Earnings Capacity schedule (a la Ogilvie).  But, applicant also refused to be evaluated by the vocational rehabilitation expert that the defense would have offered in rebuttal.

The Workers’ Compensation Judge denied defendant’s request for an order to compel applicant’s evaluation, reasoning that there was no statutory authority under which he could do so.  So, defendant filed a petition for removal (why not reconsideration? See here… )

The Workers’ Compensation Appeals Board granted defendant’s petition, reasoning that the Labor Code (section 5708) and the Code of Regulations (section 10348) both grant pretty broad authority to the WCJs to take care of business.

Furthermore, your humble blogger would be willing to wager a good amount that any award that did not allow the defense to engage in discovery, offer evidence, and make a rebuttal, would be running on the wrong side of both the California and the Federal constitutional guarantee of due process.

How can anyone claim that a defendant has been given due process when it cannot present witnesses?  And, of course, if an expert witness is not given an opportunity to examine the relevant evidence (in this case, the applicant), how can that expert’s testimony be relevant and admissible?  (Bear in mind, dear readers, that as per Labor Code section 5703(j) the testimony of vocational rehabilitation experts is to be made in the form of reports and not direct witness testimony).

In this case, it looks like the defense agreed to have the applicant examined only be telephone, but why should it?  Seeing the applicant in a face-to-face setting is a pretty good way to gauge honesty and credibility, and would tip of the voc-rehab expert to more questions to ask or to re-ask for purposes of consistency assessment.

Another question is this one – if you, as the defendant, were persuaded that the DFEC schedule should be rebutted and that the applicant is entitled to a smaller DFEC factor, can you still compel an evaluation?  Even if the applicant doesn’t want to go the Ogilvie route?  We’ve seen Almaraz/Guzman go the other way on a few cases, and perhaps Ogilvie could favor the defense as well.