WCDefenseCA

Well, my beloved readers, we made it to another Wednesday.  I know, I know, you woke up this morning wondering if your humble blogger was going to hit you with a reference to Wednesday Addams, or perhaps a camel for hump day?  But such trivialities are not appropriate for such a serious, and august blog, be it ever so humble.

So, instead I will just make a casual reference to Woden and leave it at that. 

But you’re clearly not reading this blog for an etymology lesson.  You’re reading it for updates on California workers’ compensation world (either that or you noticed that I have disabled and removed the “unsubscribe” button so now you’re stuck with me).  So, let’s get to it!

Today’s post is on the split panel decision Hernandez v. Ventura Post Acute.  The WCJ relied on the PQME’s opinion to award 45% PD after applicant sustained a fall.  However, applicant sought reconsideration, demanding the WCAB instead find her permanently and totally disabled based on an Ogilvie rebuttal of the PDRS.

Applicant offered evidence from her vocational rehabilitation expert that she was not amenable to rehabilitation and totally precluded from the workforce.  The WCAB majority granted applicant’s petition and substituted a new award for permanent total disability.

The majority was persuaded by the analysis offered by applicant’s vocational rehabilitation expert as to the work restrictions.  The way those restrictions were interpreted, applicant argued, there was no feasible job available – even a sedentary one.  For example, the VR expert interpreted the QME’s prohibition on bending and stooping as precluding any job, even sedentary, that would require the occasional bending to reach a low filing cabinet or pick up a dropped item.

Even though the QME assigned apportionment, 67% non-industrial, the WCJ rejected that opinion at trial, so the VR expert’s opinion was not challenged on apportionment grounds either.

The dissenting opinion pointed out that a preclusion from bending, stooping, or twisting referred to precluding any job that required these activities, as opposed to the occasional and incidental movements along those lines.

Just imagine how much whiplash this case must have caused?  To go from a PQME report that rated 15% PD ($14,645.00) after apportionment on its face to having the apportionment rejected at trial and facing an award for 45% PD ($68,440.00) to having the WCAB issue a permanent total disability award…

Now your humble blogger has no inside knowledge about this case, and it’s entirely possible that the following was explored, but generally speaking, there are a few things defendants can consider.  For starters, if the QME is offering apportionment of permanent disability, and applicant is seeking VR evidence, one can ask the QME if the specific work restrictions, rather than just the permanent disability, are caused in part by non-industrial or prior-industrial causes.

Furthermore, if defendants feel that the restrictions offered by the QME are being exaggerated or misinterpreted by the VR experts, a supplemental report can be sought from the QME to comment on the VR report and ask if the interpretations of the QME’s restrictions are correct or if they need to be rephrased. 

Neither of these options were discussed in the WCAB’s majority opinion, nor in the dissent, so perhaps they were attempted and came to naught.  But, in any case, this opinion should make us defendants mindful of how quickly a case can decay from a 15% PD rating to a permanent and total disability award.

What are your thoughts, dear readers?