California: The Ongoing Role of VR Evidence in Determining Permanent Disability

Recently, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) upheld a Workers’ Compensation Administrative Law Judge (WCALJ) who determined that the injured employee qualified for an award of 100% permanent and total disability (Hanus v. URS/AECOM Corporation, 2018 Cal. Wrk. Comp. P.D. LEXIS --). The case is of particular interest to the extent the defendant in Hanus had argued that the employee could not rebut the 2013 Permanent Disability Rating Schedule (PDRS) and further argued that pursuant to Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal. App. 4th 746, 80 Cal. Comp. Cases 1119, the employee could not rebut the 2005 PDRS through a showing of a different Diminished Future Earnings Capacity (DFEC) modifier.

In a very thorough and thoughtful decision, the WCALJ first pointed out that no 2013 PDRS actually exists. He indicated that although there is a 2005 PDRS, and although Labor Code Section 4660.1(d) indicates that Administrative Director may modify the PDRS, until he does that, for injuries after 2013, permanent disabilities are still rated using the age and occupational modifiers in reflected by the 2005 PDRS. As the parties did not dispute the fact that the 2005 PDRS only constituted prima facie evidence of PD, there could be no doubt that schedule could be rebutted. Then, citing the very case the defendant was relying on, Dahl, as well as Labor Code Section 4660.1(g), the WCALJ concluded that nothing precluded a finding of 100% permanent total disability in “accordance with the fact”.

In conclusion, the take-away from Hanus is that practitioners should consider the principles set forth in cases such as Dahl and LeBouef v. Workers’ Comp. Appeals Bd. (1983) 34 Cal. 3d 234, 48 Cal. Comp. Cases 587 to be alive and well. In Hanus, applicant was seriously injured and the employee’s vocational expert provided an excellent report describing his inability to compete in the open labor market. In cases like Hanus, where the employee is significantly disabled and where there is both substantial medical and vocational rehabilitation evidence showing that the applicant is not employable, the WCAB is still able to, not to mention likely to, utilize the VR evidence to increase the PD award from what may result just from the 2005 PDRS to an award of 100% PD.

THE PDF FOR HANUS IS AT THE END OF THIS BLOG POST.

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