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TPD “In Accordance with the Fact” Not Found w/o Voc Rehab Evidence

There are many mysteries in the world, but one of them is not how your humble blogger feels about “developing the record.”  For better or for worse, once discovery is closed, it should stay closed.  However, as is abundantly clear, not everyone has adopted your humble blogger’s stance on this issue.

In the case of Morris v. San Gorgino Hospital, applicant sustained three injuries: a back injury in May of  2004; an assault by a meth-addict-patient in September of 2004; and a CT through November of 2004.

A herd of AMEs was used to render opinions, and applicant ultimately argued that she was permanently and totally disabled based on Labor Code section 4662 (“in all other cases, permanent total disability shall be determined in accordance with the fact.”)

At trial, the WCJ found that applicant was 90% disabled due to the May, September, 2004 assault, 23% permanently disabled because of the cumulative trauma, and that the specific injury in May of 2004 caused only 6% permanent disability.

Before we go any further, it’s important to note that this is a really serious set of injuries: applicant underwent surgery, suffered a stroke as a result of lack of oxygen during the surgery, and, might your humble blogger remind you, was the victim of a devastating assault during which she was beaten brutally by what most kids these days refer to as a “meth-head”.  So, unlike your garden-variety victim of a particularly painful and unpleasant paper-cut, there is some logic behind the claim that Ms. Morris is permanently totally disabled.

The WCAB, in response to applicant’s petition for reconsideration, adopted the WCJ’s reasoning that, in order to rebut the Permanent Disability Rating Schedule and achieve a 100% rating based on any one injury (such as the assault in 2004), one must provide both medical and vocational evidence, which applicant failed to do here.  After all, although the AMEs concluded that applicant was precluded from competing in the labor market, they apportioned some of applicant’s permanent disability to pre-existing or non-industrial factors.

The panel relied on the WCJ’s arguments, but one commissioner dissented, noting that reconsideration should be granted and the matter should be returned to the trial level to develop the record on whether the disability is total “in accordance with the fact.”  However, as the majority was inclined to deny reconsideration, the record was denied development.  Also, practically speaking, what additional development could the record be given other than obtaining a vocational rehabilitation expert, which was already an option for the applicant before discovery closed.

The Court of Appeal denied applicant’s petition for a writ of review.



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