Tag Archives: En Banc

On Being Vigilant Against Kites

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Happy Friday, dear readers! Are we all over the shock that rumors of your humble blogger’s incarceration, demise, and/or loss of his blogging fingers have all been exaggerated? 

Well, let’s play a bit of catch up, shall we?  How about a discussion of Kite and Vigil?

First, a brief history!  The Permanent Disability Rating Schedule from 2005 calls upon us to combine various ratings for a final permanent disability.  So, a fall that results in injury to the back and the knee would ultimately be combined using the PDRS formula.   20% for the lumbar spine and 20% for the knee would not add up to 40% ($58,290) but instead combine to 36% ($50,170.00).  But as we get up higher in numbers the combined values yield more significant results.  Two impairments of 50% each, rather than adding to 100% would instead be 75%.  The basic formula is a (first PD) plus b (second PD) x (1 – a)

So, if we have 50% and 50%, the formula would be .50 + .50(1-.50) = .75 or 75% PD.

Then, of course, came the Kite decision.  In Athens Administrators v. WCAB (Kite), the PQME found impairment to both hips, and opined that the impairment should be added rather than combined.  The WCJ approved this approach and despite defendant’s appeals, the ruling was not disturbed by the WCAB or by the Court of Appeal. 

After some back and forth with various panel cases interpreting the theory, some limiting some expanding its application, the WCAB took matters into its own hands.   In the June 2024 En Banc decision in Vigil v. County of Kern, the WCAB endorsed the practice of adding rather than combining impairment, but only when “there is no overlap between the effects on ADLs as between the body parts rated; or … there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.”

In the Vigil case, applicant sustained a CT to the bilateral hips and low back.  The WCJ added the hips and combined the combined that amount with the back.   So, the Vigil decision held that when there is no overlap of ADLs, the PD for the body parts should added rather than combined.  (As an aside, dear readers, is it now fair to call applicant attorneys pushing for adding rather than combining impairment… Vigilantes?)

For example, a left knee injury which impacts standing and walking might not overlap with a psyche claim or an eye injury which limits sight.  Likewise, when a person might otherwise use a left hand to compensate for a right hand injury, but now both hands are injured, the impact on ADLs is synergistic and triggers adding impairment.

But the en banc decision also provided guidance and gave the defense some maneuvering space in making arguments.  For example, the decision notes “[w]e cannot stress enough that to constitute substantial evidence ‘… a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.’” (emphasis original).  The WCAB places the burden on the party attempting to deviate from the CVC (combining method) to explain why the adding method is justified, through an articulated discussion of the synergistic effect and overlapping ADLs. 

The burden is applicant’s to show that (1) the ADLs do NOT overlap or (2) the ADLs overlap in such a way as to “increase or [amplify] the impact on the overlapping ADLs”.

Without naming names, I can think of a few medical-legal evaluators that will need hand-holding through a deposition in order to meet the requirements of the burden of proof on various issues, whether apportionment or Almaraz/Guzman or Kite/Vigil. 

One odd thing about the result here is, though, that the Vigil court returned this matter to the trial level for the WCJ to consider developing the record.  But why?  There is a rateable report in the record already using the combined values chart.  The fact that applicant failed to carry the burden of proof on rebutting the CVC does not mean the record is not developed, only that the burden was not carried.  If your humble blogger was calling the shots (which he always does in his imaginary arguments), an Award would have issued on the current record using the CVC.

Of course, for good reason, our system of checks and balances keeps such crazy ideas out of decision-making process.

Farewell to “Vocational Apportionment!” WCAB En Banc Nunes Decision

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Happy Monday, dear readers!

The WCAB has issued an en banc  decision in the matter of Nunes v. State of California, Dept. of Motor Vehicles and it’s a doozy! 

In a perfect world, we’d have a hard-and-fast rule from the WCAB that if there is apportionment to non-industrial or prior industrial factors, vocational rehabilitation cannot be used to rebut the PDRS.  Alas, it is not to be.  So, let’s dive into what we do have!

There are a lot of details to this case, so if you’re like to do what the kids call “tl;dr”, here’s the skinny: “vocational apportionment” has something in common with Santa Clause and the Easter Bunny as all three of them are figments of the imagination of some of our colleagues.  Apportionment analysis made by a vocational rehabilitation expert must follow the rules set out for medical apportionment, and the fact that previously asymptomatic conditions failed to manifest in work restrictions or reduced wages is irrelevant. 

To rebut the PDRS and show permanent total disability due to the applicant not being amenable to rehabilitation, the voc-rehab expert must show that one industrial injury was sufficient to render applicant unable to participate in the open labor market.

Now for the details!

In the Nunes case, applicant sustained two admitted injuries working for the same defendant: one to her neck, upper extremities, and left shoulder; the other to her bilateral upper extremities as a CT.  The AME found 100% industrial causation for the left shoulder, 60% industrial causation for the cervical spine, and 40% industrial causation for the carpal tunnel CT.  The AME further opined that she did not expect applicant to be employable in the open-labor market, due to her pain and function.

Applicant’s voc-rehab expert concluded applicant “sustained a 100 percent loss of access to her open labor market.”  He deemed her “not amenable” to vocational rehabilitation.  The expert, though, distinguished “medical apportionment” from “vocational apportionment,” noting that her non-industrial factors have no impact on her earning capacity, and that the AME’s permanent work restrictions “have rendered Ms. Nunes 100 percent permanently and totally disabled” and that this would be the case solely on her left shoulder and cervical spine complaints. 

By contrast, the defense voc-rehab expert traced the AME’s apportionment to conclude that at least 10% “vocational apportionment” to non-industrial medical factors existed in this case.  After a trial, the WCJ found 100% permanent disability based on applicant’s voc-rehab expert’s opinions.

The WCAB had several rulings in response to defendant’s petition for reconsideration.  First, it ruled that there is no such thing as “vocational apportionment.”  A reporting physician is authorized and required, under Labor Code section 4663, to make an apportionment determination for other factors causing permanent disability (non-industrial, prior industrial, and post-injury factors included).  Likewise, the en banc opinion holds, “in order to constitute substantial medical evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as ‘how and why’ any specific condition or factor is causing permanent disability.”

The WCAB concluded that vocational evidence is relevant to the issue of permanent disability and can be used to rebut a scheduled rating by establishing “that an injured worker is not feasible for vocational retraining.”

Finally, the WCAB held that “in order to constitute substantial evidence, vocational reporting must consider medical apportionment.”  The WCAB continued that “factors of apportionment must be carefully considered, even in cases where an injured worker is permanently and totally disabled as a result of an inability to participate in vocational retraining.”  However, required apportionment analysis “does not permit reliance on facts offered in support of a competing theory of apportionment.” 

Providing general guidance, the WCAB offered this guidance: “an analysis of whether there are valid sources of apportionment is still required even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result.  In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant’s inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.”

Now, dear readers, before we get to the end of the story and the result, that last line has your humble blogger checking under his bed for monsters.  Did the WCAB just give vocational rehabilitation experts the boilerplate language they must now paste into every report to avoid apportionment?  If a voc-rehab expert can justify a theory that applicant is rendered unamenable to rehabilitation solely from work restrictions on a body part that is not subject to apportionment, is that enough to reach 100%?

The WCAB concluded that based on the opinions of both voc-rehab experts and the AME, “applicant’s inability to participate on vocational retraining renders her permanently and totally disabled.”  However, what about the apportionment issue?

The WCAB held that because applicant’s vocational rehabilitation expert asserted that “applicant’s prior award of disability and degenerative changes need not be considered, because they did not manifest in an inability to perform pre-injury job functions or reduced earning capacity” the voc-rehab expert failed to account for disability that formerly could not have been apportioned, such as asymptomatic prior conditions and retroactive prophylactic work preclusions. 

The WCAB then rejected both vocational rehabilitation expert opinions (applicant’s for not properly analyzing apportionment; defendant’s for being speculative as to the extent of apportionment).  The matter was returned to the trial judge for further development of the record, with leave granted to both parties to obtain supplemental reporting and for the WCJ to prepare a record addressing cause of permanent disability as between the two dates of injury.

So, what do we take away from the Nunes case?

Well, for starters, all of that nonsense about “vocational apportionment” is now moot.  The fact that a prior condition or injury had no measurable impact of wages or occupation does not impact the case at all.  Further, we have to hone in on solid evidence of apportionment.  The injuries that, by themselves, render an employee permanently and totally disabled are fairly rare, and most of them already presume permanent total disability under Labor Code section 4662.  While it’s certainly possible to be totally precluded from the open labor market from a single injury, odds are high that it is a combination of factors, only one of which is the industrial injury.

While taking Nunes on the attack against applicant’s voc rehab experts, we also have to make sure defense voc-rehab experts are not relying on the now curtailed theory of vocational apportionment, and to clearly explain the basis for any apportionment of market preclusion. 

I know this is a long blog post, dear readers, and those of you who have stuck with it this far get a lovely imaginary gold star from your humble blogger.

What are your thoughts on the Nunes case?  Drop me an email or a comment at your leisure!

WCAB: May I Have Your Autograph?

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Happy Monday dear readers!

Did we all survive the storm ok?  Everywhere your humble blogger looks, there are trees knocked over, so hopefully everyone is safe!

Well, aside from the other storm getting ready to pound the Bay Area, there’s a smaller storm a brewin’ in our beloved swamp of Workers’ Compensation.  The WCAB has issued an En Banc opinion rescinding several emergency procedures put in place in light of the COVID19 state of emergency in California.

The opinion issued March 22, 2023, so presumably it is effective as of that date, and all C&R’s executed previously are still safe.  But, going forward, any C&Rs to be submitted to the WCAB and executed on or after March 22, 2023, will have to have witness signatures.

Specifically, the WCAB rescinded emergency Orders Misc No. 260, 261, and 266.  What are they?

Misc. No. 260 suspended Rule 10500(b)(6) requiring witness signatures on compromise and release documents.

Misc. No. 261 suspended Rule 10940(b) requiring e-filing (rather than e-mailing certain documents directly to the Workers’ Compensation Judge.

Misc. No. 266 suspended Rule 10789(c) which established walkthrough hours (8:00 a.m. to 11:00 a.m. and 1:00 p.m. to 4:00 p.m.)

In light of this new En Banc Order, when preparing a C&R, we now need to ensure we secure witness signatures; documents must again be properly e-filed; and walkthroughs, which are already in person, may be conducted during the previously established hours. 

Your humble blogger sincerely hopes this is not a sign that Mandatory Settlement Conference and Status Conferences will return to in-person, as the current system of remote hearings appears to be very effective, conserving resources for the parties and expediting resolution of disputes.

For the past three years, there have been many calls urging us to return to “normal.”  However, in  your humble blogger’s even humbler opinion, through the measures necessitated by COVID19, we have discovered some procedures that are better than what used to be “normal.”  Let our urge to escape the horrific effects of the COVID19 epidemic not cause us to dismiss the lemonade we have produced from the lemons we’ve been given.

Onward and upward, dear readers!