PROVING 100%

Is vocational expert necessary to prove that a worker is 100% disabled, or can medical expert evidence establish a total permanent disability?

This is an issue that arises in the most serious workers’ comp cases, usually in the context of an argument that under Labor Code 4662 (permanent total disability according to fact) or the LeBoeuf case that a worker is permanent total. With various legislative reforms, the concept of inability to compete in the open labor market gave way to the concept of diminished earning capacity. Due to the reforms, the date of injury may dictate the strategy and criteria for establishing permanent total disability.

But though the 2012 reforms nixed the underlying DFEC language in the statute, Labor Code 4662 survived.

So it was with interest that I read a recent WCAB panel decision (by Commissioner Lowe, with Sweeney and Brass concurring), Jose Montiel vs. Cal-Tech Precision (ADJ695479). The case pertains to a 2003 injury .A pdf of the decision can be found at the bottom of this post.

Mr. Montiel had suffered a 2001 foot injury . Subsequently there was a 2003 back injury which caused problems with multiple body parts, including his psyche. A treating physician’s rating of all the impairments came to 91% using the combined values chart, but the treater opined that he was “permanently 100% disabled and will never return to the labor force”.

An AME agreed, finding that “if one takes into account his emotional issues, his pain, medication and internal medical problems then in all medical probability he cannot compete in the open labor market.”

A side issue in the case was whether the opinion of a treating psychologist would mandate apportionment. However, the psychologist reversed his opinion in deposition, backing away from apportionment.

What makes the case blog-worthy from my perspective is that the WCAB panel makes it clear that vocational expert testimony is not necessarily required to justify a 100% disability award, a contention that defendant had advanced.

The WCAB panel , citing the 2006 Gebresilassie case (71 CCC 1154) and the 2012 Marquez case (77 CCC 82) states that:

“A determination of an inability to compete in the open labor market is not solely within the province of a vocational expert. Clearly, where there is substantial evidence of significant impairment, a medical expert’s opinion regarding a patient’s vocational capacity may be sufficient to establish total permanent disability. Particularly where the combined effects of orthopedic, internal and psychiatric impairments, such as documented in the medical record here, establish an applicant is not capable of returning to the labor market.”

So while this may not be new, it is clear that in certain circumstances the medical evidence may suffice. Whether in a given case it is strategically best to use vocational expert testimony is another thing, however. One can easily imagine that some trial judges may be skeptical where doctors are expressing vocational opinions, such that it may be wise in some cases for attorneys to take that step.

And there is no indication that in Montiel the defendant attempted to present any vocational expert evidence into the record to rebut the opinion by the doctors.

Here is the July 8, 2016 decision in Montiel vs. Cal-Tech Precision:

WorkersCompMontielV.Cal-TechPrecision

Stay tuned.

Julius Young