California: The Limited Use of Vocational Rehabilitation Evidence: The Shape of Things to Come Under Dahl

In Mesanovic v. Specialty Termite, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB affirmed the WCJ’s finding that the applicant carpenter who suffered an industrial injury to his low back and psyche on 7/13/2007 did not rebut the diminished future earning capacity (DFEC) adjustment factor in the 2005 Permanent Disability Rating Schedule (PDRS) consistent with the holding in Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262 [76 Cal. Comp. Cases 624] (Ogilvie III).

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The applicant’s attempt to rebut the scheduled rating through the vocational expert opinion of Jeff Malmuth, M.S., did not comport with any of the three methods approved in Ogilvie III. Furthermore, Mr. Malmuth’s reporting did not support the applicant’s contention that he had loss of earnings. Nor did the applicant present evidence showing that his industrial injuries rendered him incapable of vocational rehabilitation (VR), when such evidence is necessary in order to the rebut scheduled rating pursuant to Contra Costa County v. W.C.A.B. (Dahl) (2015) 240 Cal. App. 4th 746 [80 Cal. Comp. Cases 1119].

Commentary:

The Mesanovic case may be the first panel case issued by the WCAB since Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal. App. 4th 746 [80 Cal. Comp. Cases 1119] was issued. This case is consistent with the holding in Dahl but is significant to the extent that it underscores the likely significant impact Dahl is going to have on the question of what role VR evidence will play in workers’ compensation cases going forward.

Indeed, as discussed in Mesanovic, Ogilvie v. City and County of San Francisco (2011) 197 Cal. App. 4th 1262 [76 Cal. Comp. Cases 624] provided three mechanisms for rebutting the permanent disability rating provided for by the PDRS. The first and third mechanisms discussed in Ogilvie do not relate to the employee’s earning capacity or their ability to benefit from VR so there is really no reason VR evidence would be relevant to those issues. Specifically, it is hard to fathom how a VR expert’s testimony could help establish either that a factual error had been made in applying a formula or in the preparation of the PDRS or where the data used to prepare the DFEC failed to fully capture the severity of all the medical complications of the injury.

Accordingly, post-Ogilvie, the only issue that VR evidence could be relevant to was to establish that the injury impaired the employee’s ability to benefit from VR causing a DFEC greater than that anticipated by the PDRS rating. Dahl and Mesanovic, however, limited the use of VR evidence even further by holding that the only VR evidence that is relevant to the second Ogilvie method is evidence that the employee is totally unamenable to VR. Meaning, the employee can in no way benefit from VR.

In conclusion, leaving aside the practical problems of offering substantial VR evidence where the VR benefit no longer exists, we will likely no longer see VR evidence in workers’ compensation cases unless the employee is arguing total permanent disability based on the total inability to benefit from VR. Perhaps another District Court of Appeal or even the California Supreme Court will ultimately disagree with Dahl; however, until then, the use of VR evidence is likely going to be significantly limited in workers’ compensation cases.  

Read the Mesanovic noteworthy panel decision.

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