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By Hon. Robert G. Rassp and Hon. Clint Feddersen
Questioning the Vocational Expert
[a] Depositions
Counsel will often need to take the deposition of the vocation expert. Live testimony of a vocational expert can occur only on a showing of good cause [see [b], below]. Vocational experts are now like medical physicians—their reports are admissible if in a proper form required by statute [see Lab. Code, § 5703(j)], and expert testimony is discouraged by requiring a good cause hearing to allow live testimony of a vocational expert. The practical effect of this is that counsel will need to take deposition testimony of vocational experts much in the same way that medical-legal or treating physicians are routinely deposed.
As with any use of expert witnesses, counsel must establish the proper foundation for the use of expert testimony. Counsel needs to establish the qualifications of the vocational expert and any other witnesses as an expert in their respective fields. That would include consideration of the witness’s knowledge, skill, education, experience, and background. Any parametric or non-parametric information would have to be authenticated as reliable and valid and accepted in the scientific community as reasonably probative on an expert’s conclusions that are being made based upon that information. Under California law, persons are qualified to testify as experts if they have special knowledge, skill, experience, or education sufficient to qualify them as experts on the subject to which their testimony relates [see Evid. Code, § 720(a); see also Daubert v. Merrill Dow Pharmaceuticals (1993) 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (in federal courts, forms the basis for admission into evidence of scientific evidence; issues of whether scientific evidence is valid and reliable are legal questions for trier of fact)].
Counsel should request a copy of the vocational expert’s curriculum vitae as part of their submitted expert witness report so that the proper legal foundation of the expert is established as part of the record.
As pointed out in the Costa case, after the qualifications of a vocational expert have been established, applicant’s costs of obtaining that expert's testimony and reports may be allowable under Labor Code section 5811, similar to the standards for allowing medical-legal costs under Labor Code section 4621(a), which provides, in pertinent part, that “the employee . . . shall be reimbursed for his or her medical-legal expenses reasonably, actually and necessarily incurred . . . . The reasonableness of, and necessity for, incurring these expenses shall be determined with respect to the time when the expenses were actually incurred.” The Appeals Board in Costa concluded that in order to be reimbursable, the costs of evidence in rebuttal of a permanent disability rating “must be reasonable and necessary at the time they were incurred, and such determination will also be made on a case by case basis” [Costa, 72 Cal. Comp. Cases at 1498]. The Appeals Board further held in Costa that vocational expert costs may be reimbursable even though the applicant is unsuccessful in their claim, and this aspect of the en banc decision has been followed in other cases, including Diaz v. E&F Demolition [2021 Cal. Wrk. Comp. P.D. LEXIS 82 (Appeals Board noteworthy panel decision)].
[b] Live Testimony
As of January 1, 2013, live testimony of a vocational expert at trial at the WCAB is allowed only upon a showing of good cause. There are one or two scenarios where this could happen: (1) If a WCJ wanted the record developed after reading vocational expert’s reports; or (2) If the parties agreed to an “agreed vocational expert.” Counsel have agreed to a neutral vocational expert in our cases in the past and perhaps this is the beginning of a trend—it saves money, time, and creates a clear record from which a WCJ and the WCAB can rely. In fact, it is not unprecedented for a judge to order appointment of an independent vocational expert pursuant to Labor Code section 5701, much like a “regular physician” is appointed by a judge when the medical-legal record is insufficient to rely on for a just decision and the parties will not agree to an agreed medical examiner [see City of Torrance v. Workers’ Comp. Appeals Board (Waggoner) (2021) 86 Cal. Comp. Cases 716 (writ denied)]. A detailed discussion of the Waggoner case is appropriate to demonstrate the specific role of a vocational expert and how that role influenced the trial judge in developing the record in the case and making a just decision that was upheld on appeal.
In Waggoner, a finding of permanent, total disability was upheld based upon the workers’ compensation judge’s appointment of a vocational expert. The procedural history of this case, which is not fully reported in the California Compensation Cases writ denied summary, is of interest because it demonstrates the extent of the trial judge’s authority to develop the record when substantial medical evidence is lacking, and the consequences of not using discovery to fully develop the record before trial and then relying upon those deficiencies as a strategy at trial or reconsideration. A complete summary of that case, and each argument raised by the defense, is included in the adopted and incorporated report and recommendation [see Waggoner v. City of Torrance, 2021 Cal. Wrk. Comp. P.D. LEXIS 379 (Appeals Board noteworthy panel decision)].
In Waggoner, the original joint findings and award, finding 98 percent permanent disability on the Combined Values Chart, was rescinded following the petition for reconsideration by defendant City of Torrance to develop the record by having an AME and five QMEs in different specialties answer questions about their Whole Person Impairment (WPI) assessments using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, and review surveillance videos that they had not previously reviewed.
Commentary: If a case involves six different medical specialties, look out for how disabilities are combined, as explained in Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) [78 Cal. Comp. Cases 213 (writ denied)], and rebutted by vocational evidence, as explained in Target Corp. v. Workers’ Comp. Appeals Bd. (Estrada) [(2016) 81 Cal. Comp. Cases 1192 (writ denied)], either of which can potentially turn a permanent partial disability case into a permanent total disability case.
In addition to serving as a cautionary tale about using discovery to proactively address potential rebuttal of the Combined Values Chart and rebuttal of scheduled permanent disability with vocational evidence, the Waggoner case also illustrates the dangers of using evidence obtained by surveillance. At the initial trial hearing, sub-rosa surveillance videos were admitted over applicant’s objection. These videos did not appear to the trial judge to contain any evidence that would change any of the medical experts’ conclusions drawn from the remainder of the evidence, but because a judge may not substitute his or her lay opinion for matters requiring expert testimony, the videos were shown to all of the medical evaluators to obtain their perspective. A brief summary of the surveillance videos was provided in each of the opinions on decision, as follows:
03/22/2014 – Applicant’s head is visible over a fence.
03/25/2014 – Applicant drives a sport utility vehicle (SUV) and eats at International House of Pancakes (IHOP).
03/28/2014 – Applicant walks, drives, pumps gas, sits at a table, and stands. After sitting a while, he stands up and reaches for his back, apparently due to back pain.
03/28/2014 – (Part II) Applicant sits at a table, gets up to purchase food and drink, drives an SUV, and walks.
04/11/2014 – Applicant carries a green bag into “South Bay Aquatics Indoor Swim Center,” where he appears to be doing some kind of aquatic therapy by walking slowly in a pool. He carries the bag, (which we now may surmise contains his swimsuit) back to his SUV, and drives.
04/18/2015 – Applicant carries the same green bag. He stops to hold his back. He stands by a door, then walks to the curb and gets into an SUV. He carries the green bag in one hand and what appears to be a travel mug in the other. He then appears to be doing some kind of aquatic therapy again, by walking slowly across a pool. He drives, and carries the green bag again.
04/10/2016 – Applicant gets into a different SUV, and eats at a restaurant. He is shown walking. He opens the hood of his vehicle, looks at something, and closes the hood. He opens the door of his vehicle and lets some big dogs out.
04/11/2016 – Applicant pulls two plastic trash containers away from the curb at the same time. Based on his movement away from the curb, it can be inferred that these containers are empty. The video is only 17 seconds long.
04/15/2016 – Applicant’s fence is shown, without applicant present. Then, someone is shown getting into a vehicle, possibly applicant, but the view is blocked by rear-view mirrors. Then, applicant’s vehicles are shown, parked, without applicant present.
04/16/2016 – Applicant puts air into his tires, sits in vehicle, drives, appears to be pouring some liquid from a yellow bottle under the hood of his vehicle, sits at a table for a while, stands up and sits down again, and talks on a mobile phone.
04/17/2016 – Applicant gets into an SUV, and walks in a parking lot.
04/24/2017 – Applicant walks to a garbage can, and parks an SUV.
07/28/2107 – Applicant is carrying the same green bag as before. He gets in and out of an SUV. He visits a golf store, where he tries out putters.
This sub-rosa video not only failed to achieve its intended purpose of disproving impairment and disability, but caused a slight increase in the combined level of permanent disability. The medical evaluators observed the difficulty with which Mr. Waggoner performed his daily activities, then made adjustments to their opinions, which included using addition to combine permanent disability between some body parts in accordance with the Kite case. An amended joint findings and award found 99 percent permanent disability, based on the supplemental reports and deposition testimony received from the physicians, as well as further testimony from Mr. Waggoner.
Defendant petitioned for reconsideration of the 99 percent amended award. The petition raised many questions regarding the physicians’ impairment assessments and use of Kite, including the argument that the resulting 99 percent permanent disability rating was “inconsistent with observed level of applicant’s functioning” and that applicant was in fact capable of returning to work and had not lost 99 percent of his earning capacity. The amended award was therefore rescinded following defendant’s petition for reconsideration to develop the record with vocational evidence to determine whether applicant’s disability is greater, or less than, what was calculated based on the scheduled adjustment of his medical impairments under the AMA Guides.
After the parties were unable to agree upon a vocational expert, the workers’ compensation judge appointed a vocational expert to evaluate applicant and provide his opinion regarding disability pursuant to Labor Code section 4660, which mandates “consideration being given to an employee’s diminished earning capacity” and Labor Code section 5701, which permits the record to be developed by causing testimony to be taken. If the parties had obtained deficient vocational evidence (which frequently is the case), the preferred method of developing the record would have been to obtain supplemental opinions from existing vocational experts, following the method for developing medical evidence described by the Appeals Board in McDuffie v. Los Angeles County Metropolitan Transit Authority [(2002) 67 Cal. Comp. Cases 138 (Appeals Board en banc)].
Since the parties failed to obtain any vocational evidence before trial but had subsequently raised a legitimate question that required vocational evidence to resolve without speculation, the parties were given an opportunity to attempt to agree on a vocational expert before one would be appointed for them. The parties requested names of vocational experts to consider. The trial judge searched California Compensation Cases and found five vocational experts whose opinions had been found to be substantial in other recent cases and offered these names to the parties as possible agreed vocational experts. The parties were unable to agree on a vocational expert to develop the record, so the workers’ compensation judge selected the evaluator with the strongest credentials, including the most experience handling Social Security disability cases. This vocational expert was appointed to evaluate Mr. Waggoner, review all evidence, including surveillance, and report fully on the nature and extent of diminished earning capacity.
At the trial judge’s direction, the court-appointed vocational expert was permitted to review and comment on evidence discovered by post-trial investigation, showing that Mr. Waggoner had won money in poker tournaments, and had renewed his real estate license. Like the initial surveillance, this evidence failed to achieve its intended purpose of showing earnings and gainful employment. The court-appointed vocational expert found that the evidence, including the additional evidence of poker winnings and renewal of a real estate license, did not prove gainful employment or vocational feasibility, and explained why applicant has not been able to generate sustained earnings of any kind, based on the results of his vocational testing.
After issuing his report, the court-appointed vocational expert was deposed by videoconference. Good cause was also found under Labor Code section 5703(j) to allow defendant to call the vocational expert to testify at trial, after applicant had testified a third time, in order to fully assess the vocational expert’s opinions in an interactive manner before the trial judge and determine whether his opinions were, in fact, correct.
The court-appointed vocational expert cogently and persuasively explained his conclusion that Mr. Waggoner was permanently and totally disabled due to vocational non-feasibility. A final amended findings and award found that Mr. Waggoner was not 99 percent permanently disabled, but 100 percent permanently disabled, based on a total loss of earning capacity. The vocational expert found this loss of earning capacity to be entirely caused by industrial factors, analogous to the Estrada case, cited above [see Target Corp. v. Workers’ Comp. Appeals Bd. (Estrada) (2016) 81 Cal. Comp. Cases 1192 (writ denied)]. (Note: The Estrada case was based on a different vocational expert, who also happened to be one of the five vocational experts offered to the parties as a potential agreed vocational expert based on the Appeals Board’s reliance on their opinions.)
Defendant petitioned for reconsideration of the finding and award of permanent total disability. The petition raised numerous contentions, including that the evidence did not justify the findings of fact. Defendant’s detailed arguments are best summarized by the following statement in the petition itself: “Impairments and associated permanent disability are not supportable, since impairment must be based on consistent, reliable findings at Maximal Medical Improvement (MMI), which are lacking in this case. The overall magnitude of impairment and associated permanent disability is inconsistent with Mr. Waggoner’s current level of functioning.”
The petition pointed out that the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides) must be used, and that is undoubtedly required by Labor Code section 4660, which was applicable to applicant’s pre-2013 injuries. The report and recommendation in Waggoner explain how the AMA Guides was in fact used extensively and correctly by the AME in orthopedics and by five QMEs in other specialties. Each of the evaluators found Mr. Waggoner to have reached MMI and assessed WPI percentages using criteria within the four corners of the AMA Guides, which were adjusted into permanent disability with 15 different rating strings using the 2005 rating schedule.
Defendant’s final petition for reconsideration was replete with accurate and relevant citations of authority, all of which supported the decision instead of providing grounds to rescind it. The petition correctly pointed out that a medical expert’s opinions must be substantial, based on relevant facts and correct legal theories, as explained in Escobedo v. Marshalls (Guzman) [(2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc)]. The petition also correctly pointed out that it is the physicians’ role to assign WPI percentages, and that the lay opinion of attorneys or a judge cannot be used in lieu of what the medical experts have provided. However, in the Waggoner case, the medical experts’ opinions all were sufficiently consistent with the facts and applicable law, and to the extent that defendant believed otherwise, it had more than a sufficient opportunity to present its position and evidence to the medical experts. The same is true of the vocational expert, who reviewed everything presented by defendant and ultimately found 100 percent permanent disability, in rebuttal of the scheduled adjustment of impairments. The Waggoner case illustrates how it is incumbent upon each party to use discovery, preferably before setting a case for trial, to improve one’s hand of substantial expert opinions and then—to use a poker analogy—know when to hold and when to fold.
The use of vocational expert opinion should never be considered completely off the table, even during development of the record after trial. As pointed out in applicant’s answer to the reconsideration petition in Waggoner, as well as the AMA Guides at page 5, disability and impairment are different things, and “impairment ratings are not intended for use as direct determinants of work disability.” The AMA Guides acknowledge that employability determinations usually require “input from medical and nonmedical experts, such as vocational specialists” (AMA Guides, page 14, lines 9-11). To the extent that scheduled impairment ratings do not accurately describe disability, the scheduled ratings may be rebutted. Ogilvie v. Workers’ Comp. Appeals Bd. [(2011) 197 Cal. App. 4th 1262, 76 Cal. Comp. Cases 624], describes three methods of rebutting a scheduled rating: (1) Errors in the calculation or application of the rating schedule’s Future Earning Capacity (FEC) adjustment; (2) The inability to be retrained for meaningful employment, as expressed in LeBoeuf v. Workers' Comp. Appeals Bd. [(1983) 34 Cal. 3d 234, 48 Cal. Comp. Cases 587]; or (3) “In rare cases” it may be shown that the data used to create the FEC adjustments in the schedule did not capture all of a particular worker’s medical complications or their severity. As permitted by Ogilvie and suggested on page 14 of the AMA Guides, input from a vocational specialist was required in the Waggoner case to determine whether adjusted impairments accurately reflected applicant’s vocational disability, and whether applicant was amenable to retraining. The vocational expert in Waggoner took all of Mr. Waggoner’s industrial medical conditions into account, and also performed vocational testing. He concluded that Mr. Waggoner was not amenable to vocational retraining, stating:
Even if Mr. Waggoner were to participate in these services, it is unlikely that he would be successful in returning to work given his poor residual functioning and poor vocational aptitudes.
Mr. Waggoner struggled to perform simple physical tasks in a controlled testing environment. He exhibited significant problems with pain. He demonstrated cognitive decline and scored poorly for vocational aptitudes and abilities due to his significant medical problems. Mr. Waggoner would have difficulty keeping up a work pace or meeting deadlines due to his problems. Based on the vocational evidence which is consistent with his combination of medical problems, Mr. Waggoner would not benefit from a vocational training program or direct job placement services; given the evidence in this case, I find that he cannot benefit from vocational rehabilitation services.
Accordingly, the AMA Guides were followed in Waggoner with substantial medical evidence, then rebutted by a substantial vocational opinion per the second method in Ogilvie. The Appeals Board adopted and incorporated the trial judge’s report and recommendation, which explains the arguments and evidence in much more detail than is provided here, and the Court of Appeal denied defendant’s petition for a writ of review.
Criteria for Vocational Reports
[a] Sequential Step Analysis
The vocational expert reporting for each party would use a sequential step analysis of the injured worker’s medical conditions, AMA Guides WPI rating(s), past relevant work and earnings, and residual functional capacity to determine whether the person has suffered a total loss of earning capacity due to the impairments that are work related. The vocational experts would have to know what WPI ratings a judge could find in the case.
[b] Job Retraining
For the hypothetical case where the applicant is claiming permanent total disability, but where the 2005 PDRS rating is less than 100%, a vocational expert would have to establish the following facts:
If the vocational expert’s conclusions are that the applicant cannot perform their past relevant work, cannot perform any transferable skills, cannot perform unskilled sedentary work, and is not feasible for retraining, then the conclusion is that the applicant is permanently totally disabled and has a total loss of future earning capacity. (By the way, this conclusion by a vocational expert in a Social Security disability case results in entitlement to Title II or Title XVI Social Security disability or SSI disability benefits, respectively.) If the work-related impairment is the direct cause of the person’s inability to perform sedentary, unskilled work and inability to be retrained, then there is an argument that the person is 100% permanently and totally disabled on an industrial basis.
Of course, the defense witness in a workers’ compensation case would want a shot at this applicant to testify that there are sufficient jobs in the national, regional, or local economy that the injured applicant could perform, despite their work related impairments. As is often the case in Social Security disability cases, many administrative law judges ask a claimant why they could not work as a “greeter” at a retail store with a “sit or stand option”, which requires virtually no physical effort but only requires that the employee show up on time in a presentable manner. In addition, non-work related impediments to retraining can be considered as part of whether a work related injury has fully caused a total loss of earning capacity. These include lack of education, non-English speaking ability, illiteracy, or immigration status [see Argonaut Insurance Company v. Industrial Accident Commission (Montana) (1962) 57 Cal. 2d 589, 21 Cal. Rptr. 545, 371 P.2d 281, 27 Cal. Comp. Cases 130 (commonly referred to as the “Montana factors”)].
In an AMA Guides case, counsel would be wise to have the treating or evaluating physician(s) review the vocational expert’s reports, including any conclusion regarding the applicant’s lack of feasibility for retraining. In addition, expert opinion from physicians would be essential in proving that despite having a WPI rating that results in a less than 100% permanent disability rating, the applicant has a totally diminished future earning capacity and is permanently and totally disabled from any employment or earning capacity. In order to constitute substantial medical evidence, the physician would have to indicate how and why the applicant cannot earn a living now or in the future and how this condition is directly caused by the industrial exposures. So vocational reports should be reviewed by the medical-legal and primary treating physician, and the MMI reports of the physicians should be reviewed by the vocational expert.
[c] Future Earning Capacity
If counsel intends to depose an expert witness, a vocational expert or medical-legal expert and plans on asking hypothetical questions to the expert witness, it is extremely important for counsel to be able to prove at trial the elements of the hypothetical questions. Otherwise, testimony of the expert would be speculative if counsel is unable to prove the underlying facts that formed the basis of a hypothetical.
For example, suppose an injured worker is a school maintenance worker who suffers a serious industrial asthma condition resulting in a 45% WPI rating under Chapter 5 of the AMA Guides, along with a 10% WPI psychiatric impairment and a 2% WPI speech/voice impairment, with no apportionment to non-industrial factors, and based upon the conclusions of AMEs in the respective specialties. The combined values chart leaves a grand total WPI to be 52%. The overall permanent disability rating for the maintenance worker who is 39 years old on the date of injury would be 58% permanent disability. The applicant’s pre-injury earnings as a maintenance worker were $68,000 per year. His residual functional capacity includes the provision that he cannot lift/carry over 50 lbs., he cannot work outdoors, and he cannot be exposed to fumes, dust, or particulates.
The rating of 58% permanent disability is equal to $97,222.50 if the date of injury occurred on or after 2014. You can see how low this amount is in comparison to the loss of future income from a quasi-civil service job that pays well over the course of a 39-year-old man’s life expectancy. The factual question is, how much loss of future income is this applicant going to experience one year, five years, ten years, twenty or more years, post injury? Can any amount of loss of future earnings be predicted based upon reasonable scientific probability? What evidence is needed to prove or disprove these contentions? What if the employer offered modified or alternative work based upon the applicant’s transferable skills? What discovery does counsel need to prosecute or defend a strict permanent disability rating?
Any expert witness for the applicant and defendant would have to review all relevant medical evidence in the case, along with the legal documents and deposition testimony of expert witnesses, in order to formulate opinions about the effects of impairments on the injured worker’s future earning capacity.
The vocational expert, actuary, or economist should conduct the following testing:
The work evaluation and vocational profile are standard assessments that are made by vocational specialists throughout the nation. This involves identifying the specific work duties, skills, education, knowledge, experience, abilities, compensation, and the levels of arduousness actually performed in the injured worker’s past relevant work history. The work evaluation testing determines the injured worker’s current physical and mental tolerances after reaching maximum medical improvement following their industrial injuries.
Vocational testimony must utilize scientifically valid and reliable evidence to support a contention that there is a loss of future earnings that is not correctly or adequately reflected in the permanent disability ratings calculated from the whole person impairment(s). Vocational specialists must insist upon a functional capacity evaluation to be made on an injured worker as part of the evaluation process. That functional capacity evaluation is to be performed by either a physician or physical therapist and should produce data from testing an injured worker over a period of three to five days. There are nationally accepted protocols for functional capacity assessments, including those listed in Form PR-4 pursuant to ADR 9785 [Cal. Code Regs., tit. 8, § 9785].
There are specific residual functional capacity assessment instruments in the public domain that are published by the Social Security Administration. There are also nationally accepted standards for residual functional capacity assessments called the Blankenship system of which every physical therapist and vocational expert knows. In addition, the vocational expert should perform a transferable skills analysis utilizing the same standards that are used nationally.
One method of conducting a transferable skills analysis in connection with determining an estimate of diminished loss of future earning capacity is the use of the McCrosky Transferable Skills Program software. This is a proprietary computer program that takes into account the applicant’s past relevant work, skills, education, and work experience, and it determines with statistical significance any transferable skills and predicted future earnings based upon jobs that an injured worker could perform. The program utilizes the U.S. Department of Labor’s Dictionary of Occupational Titles (D.O.T.) that indicates the level of skills, description of duties, and arduousness of each type of job classification in the national, regional, and local economies. This program, and perhaps others that are utilized by vocational counselors, have demonstrated validity and reliability in the courts outside the WCAB, and time will tell whether these experts and their instruments will be admitted into evidence in workers’ compensation cases.
Counsel should be aware that the occupational variants in the permanent disability rating schedule (PDRS) are based on the job titles, levels of skill, specific vocational preparation (SVP), and arduousness categories from the U.S. Department of Labor’s Dictionary of Occupational Titles (D.O.T.). Here is the list of SVP used by vocational experts to determine how long it takes to become proficient in a specific job. The SVP protocols are from the U.S. Department of Labor’s Dictionary of Occupational Titles:
An Explanation of SVP
Specific Vocational Preparation is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.
This training may be acquired in a school, work, military, instructional, or vocational environment. It does not include the orientation time required of fully qualified workers to become accustomed to the special conditions of any new job. Specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs.
Specific vocational training includes training given in any of the following circumstances:
a. Vocational education (high school; commercial or shop training; technical school; art school; and that part of college training which is organized around a specific vocational objective).
b. Apprenticeship training (for apprentice-able jobs only).
c. In-plant training (organized classroom study provided by an employer).
d. On-the-job training (serving as learner or trainee on the job under the instruction of a qualified worker).
e. Essential experience in other jobs (serving in less responsible jobs which lead to the higher grade job or serving in other jobs which qualify).
The following is an explanation of the various level of specific vocational preparation:
SVP 1 - Short demonstration only
SVP 2 - Anything beyond short demonstration up to and including 1 month
SVP 3 - Over 1 month up to and including 3 months
SVP 4 - Over 3 months up to and including 6 months
SVP 5 - Over 6 months up to and including 1 year
SVP 6 - Over 1 year up to and including 2 years
SVP 7 - Over 2 years up to and including 4 years
SVP 8 - Over 4 years up to and including 10 years
SVP 9 - Over 10 years
Note: The levels of this scale are mutually exclusive and do not overlap.
That being said, the vocational or other expert would also have to establish how and why the applicable DFEC adjustment or the 1.4 adjustment factor under the permanent disability rating schedule does not accurately reflect the specific applicant’s permanent loss of future earning capacity as a result of the industrial injury.
The point is that in 1997 Schedule cases, we never needed that high of a level of scientific evidence to support the contention that a less than 100% rated applicant is permanently and totally disabled from the open labor market based solely upon a vocational expert’s testimony and a work evaluation report. The LeBouef case came out of a permanent disability rating schedule that was similar to the 1997 schedule, based on work restrictions, which differs greatly from the permanent disability rating schedule pertaining to WPI ratings under the AMA Guides.
To apply these concepts to dates of injury on or after 2013 requires much stronger and persuasive scientific evidence to rebut the presumption that a rating under the applicable permanent disability rating schedule is prima facie evidence of an injured worker’s permanent disability. This will be required regardless of whether the injured worker is claiming permanent total disability or contending that the strict rating string inadequately reflects the injured worker’s diminished future earning capacity as a direct result of their industrial injuries, even though the injured worker is still able to work.
[d] Rebuttal of Rating under Dahl
If counsel intends to present expert witness deposition testimony and introduce documentary evidence from experts in order to rebut a permanent disability rating based upon the permanent disability rating schedule, counsel must disclose the existence of the witness and documentary evidence at the time of the Mandatory Settlement Conference. Counsel on both sides must be sure to list the names of the expert witnesses and any documentary evidence to be relied on at the time of trial [see Lab. Code, § 5502(d)(3); Grupe Co. v. Workers’ Comp. Appeals Bd. (Ridgeway) (2005) 132 Cal. App. 4th 977, 34 Cal. Rptr. 3d 98, 70 Cal. Comp. Cases 1232].
Counsel should make sure that their vocational expert is prepared to respond to the permanent disability rating that a judge concludes the applicant has in a case. If there is no agreed medical examiner, then the experts for both sides must be prepared to rebut any rating that may be issued by the judge based upon the conclusions of the treating and evaluating physicians in a case since counsel will not know which physician a judge will rely on in their opinion.
Obviously, expert reports or testimony to rebut a permanent disability rating under the permanent disability rating schedule is made easier if the parties use an AME in the case since the permanent disability rating will be known by the parties at the time of trial in most cases. In Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) [(2015) 240 Cal. App. 4th 746, 80 Cal. Comp. Cases 1119], the Court of Appeal provided substantial clarification on the necessary requirements to rebut the PDRS. In Dahl, the applicant had been awarded 59% in the initial trial in the matter. Both parties presented rebuttal evidence to the PDRS; however, the trial judge rejected the arguments for rebuttal, concluding rebuttal under Ogilvie was available only where it supported a permanent total disability. On appeal the WCAB reversed the judge and remanded, instructing the trial judge to consider rebuttal where the rating was less than 100%.
The trial judge, relying on the opinion of the injured worker’s expert, awarded a 79% permanent disability, substituting the expert’s opinion of loss of earning capacity for the rating from the rating schedule. Defendant appealed, and the WCAB upheld the award. However, the Court of Appeal reversed, finding the evidence relied upon by the judge and the Appeals Board did not meet the minimum requirements under both Ogilvie and its predecessor decision in LeBoeuf v. Workers’ Comp. Appeals Bd. The Court of Appeal held that both of those cases required consideration of the effect of the injury on the employee’s ability to be retrained as the threshold issue, not simply whether there was a different calculation as to the employee’s diminished earning capacity. Practitioners should take note of the Dahl case, in which the Court of Appeal held that both Ogilvie and LeBouef required consideration of the effect of the injury on the employee’s ability to be retrained as the threshold issue, not simply whether there was a different calculation as to the employee’s diminished earning capacity [see Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal. App. 4th 746, 80 Cal. Comp. Cases 1119]. This theme has followed in the case law since 2015, most recently in the Fitzpatrick case.
The Dahl court noted in relevant part:
… Dahl sought to invoke the second method approved in Ogilvie (the “LeBoeuf method”) under which the employee shows she “will have a greater loss of future earnings than reflected in a rating because, due to the industrial injury, the employee is not amenable to rehabilitation.” (Ogilvie, 197 Cal.App.4th at p. 1275.) Dahl’s “rebuttal,” however, included no evidence that the industrial injuries she sustained to her neck and shoulder rendered her incapable of rehabilitation. Rather, her “rebuttal” consisted solely of a vocational expert’s opinion that his method for determining Dahl’s diminished future earnings capacity produced a higher rating than that of the rating produced by the Schedule and that his method more accurately measured Dahl’s diminished future earnings.
Dahl’s attempted rebuttal did not comport with any of the methods approved in Ogilvie for rebutting the rating provided using the rating schedule and is therefore foreclosed by Ogilvie.
The Dahl court also emphasized the presumption in favor of the rating under the PDRS and the limited ability to rebut that rating:
… Under the 2004 amendments, a claimant’s scheduled rating is presumptively correct. Ogilvie confirmed the Legislature meant what it said, and that claimants may not rebut their disability rating merely by offering an alternative calculation of their diminished future earning capacity. While Ogilvie found the 2004 amendments did not overthrow certain long-held approaches to calculating earning capacity, it clearly did not intend those approaches to be construed so broadly as to return us to the ad-hoc decision making that prevailed prior to 2004. Following the WCAB’s approach in this case would do just that. Claimants could rebut their presumptively correct disability rating merely by presenting an analysis that shows a greater diminished future earning capacity than that determined by applying the Schedule … .
The Court of Appeal also expressed its skepticism that an employee could adequately rebut the permanent disability rating schedule using the second methodology in Ogilvie without showing a complete inability to be retrained. However, as that issue was not considered to be before the court, it did not make a finding on that issue.
The decision in Dahl is likely to result in a dramatic reduction in cases where rebuttal under Ogilvie is an option. By focusing on the ability to be retrained, rather than on the development of an alternative diminished future earning capacity, the Court of Appeal has narrowed the legal landscape to those employees whose injury results in either a significant impairment in their ability to be retrained or possibly only to those whose ability to benefit from retraining has been eliminated.
The decision in Dahl is also a reminder not to attempt a strict permanent disability rating rebuttal in every case that “comes close to a life pension standard adjusted rating.” Practitioners should consider whether alternative ratings methods under Guzman III or an occupational group would be more effective in raising a permanent disability rating, such as the 59% rating in Dahl, to a life pension level. “Best practices dictate that Method 2 under LeBoeuf should be used only when the applicant is not able to be retrained due to the industrial injury and has significant diminished future earning capacity, or none at all.” Under LeBoeuf and now Fitzpatrick, always individualize the expert witness information to the applicant first and then compare their post-injury earning capacity to similarly situated employees using EDD data.
How should counsel obtain an injured worker’s post injury wage data? Counsel is advised to obtain reliable and reproducible data directly through a vocational expert or from union contract agreements. Do the parties need expert witnesses to prove same or similarly situated employee wages? If counsel for either the injured worker or defendant wants to front the costs and expenses to a vocational expert who can present reliable and reproducible data, then that is a strategic decision. Since the law mandates a vocational expert fee schedule, these services may or may not be included in the charges for this evidence. Otherwise, a party could obtain the data from a reliable source and present the data in the form of an exhibit, especially if the data source is a public record or obtained through a public agency such as the EDD.
One aspect of Ogilvie III/LeBoeuf/Fitzpatrick rebuttal is that defense counsel may want to present evidence that an injured worker failed to mitigate damages so to speak by seeking and obtaining employment during a post-injury period if their condition had been declared permanent and stationary and they failed to seek employment. In other words, a good faith effort on the part of the injured worker may be addressed by defense counsel as a strategy to rebut an injured worker’s attempted rebuttal to a scheduled strict permanent disability rating that is less than 100%.
© Copyright 2023-2024 LexisNexis. All rights reserved. This article was excerpted from California Workers’ Compensation Discovery, by Hon. Robert G. Rassp & Hon. Clint Feddersen (LexisNexis). To see whether any copies of the book are still available for purchase as of June 2024, contact: Robin.E.Kobayashi@lexisnexis.com.