WCDefenseCA

You know, dear readers, I like to think of myself as “still young.”  I’m hip and jive and cool and whatever else it is the kids are saying these days.  But somethings escape me, such as this “meme”:

Though factually accurate 1/7th of the time, the significance escapes me.  I guess your humble blogger really is falling behind.

Anyways, as the lovely frog above has pointed out, it is Wednesday [my dudes].  What better way to greet a Wednesday than a blog post about a voc rehab report failing to take a claim to 100%?

The case is, of course, Nieves v. City of Hayward.  Therein, applicant sustained an admitted injury in 2012, resulting in 47% PD based on the rating schedule and the AMA Guides.  However, applicant was not content with this result as he was seeking a finding of permanent total disability based on vocational rehabilitation evidence.

Applicant’s voc rehab expert found total loss of future earning capacity.  However, applicant had a prior injury back on 2001 which presented its own set of work restrictions.  The vocational rehabilitation evidence in this case combined both sets of restrictions (2001 injury AND 2012 injury).  The trial judge specifically rejected this approach as incorrect – “a rebuttal of the [PDRS] and a finding of [DFEC] in this case must be based on the medical restrictions in this case, not the combined restrictions from the 2001 and 2012 injuries” (emphasis in original).

Furthermore, because the vocational rehabilitation evidence failed to provide that applicant was not amenable to rehabilitation, the PDRS cannot be rebutted as per Dahl.  Presumably, this would mean that to rebut the PDRS, the vocational rehabilitation evidence would have to show that the immediate injury is sufficient to preclude vocational rehabilitation.

Of interest, the WCJ only ordered defendant to pay 50% of the vocational rehabilitation expert’s fee, reasoning that the time spent reviewing the records should be compensated but not the time spent writing a report that had no probative value in the case.

I think my beloved readers already know your humble blogger’s position on post 1/1/13 vocational rehabilitation evidence: you can rebut as much as you want a completely irrelevant fact since diminished future earning capacity is no longer a factor in determining permanent disability.

But for claims like this pre 1/1/13 injury, Dahl is being applied effectively and correctly – absent evidence that this injury (rather than all of applicant’s injuries and non-industrial conditions) precludes vocational rehabilitation, there’s no rebuttal of the PDRS.

It should be noted though that this was a SPLIT panel – one WCAB commissioner dissented, reasoning that the record conflicts with the summary of facts, and that applicant’s vocational rehabilitation expert did, in fact, find that all inability to work stemmed from the new injury.  The Dissent did not, however, address the issue of amenability to vocational rehabilitation.

Cheerio!