The Supreme Court of California denied review and denied the request for depublication in Stevens v. Workers’ Compensation Appeals Board on February 17, 2016, though Judge Mariano-Florentino Cuéllar believed petition for review should have been granted. This means the opinion of the Court of Appeal (which is similar to the Supreme Court of California’s opinion South Coast Framing, Inc. v. Workers’ Compensation Appeals Board (Clark)) the California Constitution gives the Legislature “plenary power” to pass laws relating to Workers’ Compensation which is not limited by the rest of the state Constitution – basically complete power to act (as long as it doesn’t conflict with the rest of that section of the California Constitution or federal due process rights under the U.S. Constitution, meaning basically the provision has some support).
As reminded by the Court of Appeal in Stevens, the Legislature found the process prior to SB 863 was time-consuming, costly, and did not result in uniform treated based on evidence-based medicine. In response, the Legislature crafted IMR which is faster and less prone to errors than using the med-legal process. While still subject to other legal attacks regarding the constitutionality of the IMR process, this is the process we have now, and along with the other reforms of SB 863 has resulted in significant savings for employers and insurers.
On October 28, 2015, the California Court of Appeal issued a decision in Batten v. Workers’ Compensation Appeals Board (Long Beach Memorial Hospital), again reminding the workers’ compensation community that statutes which are plainly stated must be followed.
In affirming the WCAB, the Court of Appeal held an injured worker may not obtain a report to rebut a panel QME from anyone other than a primary treating physician . In the Batten case, an injured worker obtained a medical report from her own qualified medical expert even though there was a panel QME in the case; she did this after the workers’ compensation administrative law judge authorized her to do so. The injured worker argued it was admissible under Labor Code section 4063 which notes “all comprehensive medical evaluations obtained by any party shall be admissible in any proceeding before the appeals board except as provided in Section 4060, 4061, 4062, 4062.1, or 4062.2.”
The QME found there was not sufficient causation for the claimed psyche injury while the “hired gun” medical expert determined it was industrial. The Court of Appeal emphasized that medical evaluations to determine compensability or resolve disputes must be obtained pursuant to Labor Code section 4062.2. The Court of Appeal also emphasizes reports regarding permanent impairment may be admissible from a primary treating physician, while all other privately retained expert reports are not admissible. The Court of Appeal further agreed with the WCAB that Labor Code section 4605 allowing a “consulting doctor” to provide an opinion is limited to medical treatment issues, not medical-legal issues to try to rebut a panel QME.
This is another case where the Court of Appeal highlights that the language in the statutes or in their decision really is what the legislature or the court meant. While Labor Code section 3202 provides the law should be construed liberally with the purpose of extending benefits for injured workers, it does not mean the words should be ignored. In this case, a legislative rule expressly declares such evidence to be inadmissible. Consequently, “there is no ambiguity to clarify, there is nothing to construe, there is only the obligation to follow the statutory law.”
The California Court of Appeal issued an opinion dated September 25, 2015 in Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) which deals with a frequently litigated issue – vocational expert evidence. This case limits broad interpretation by Workers’ Compensation Appeals Board of the prior case of Ogilvie v. Workers’ Compensation Appeals Board (2011) 197 Cal.App.4th 1262 by focusing explicitly on whether an employee is amenable to rehabilitation. Dahl also suggests such evidence is only appropriate in cases where an employee is totally precluded from the labor market due to his or her injury and complete inability to work specifically due to a work-related injury.
To remind you, as explained in Dahl, the law allows the permanent disability rating schedule to be rebutted by three different methods:
- A party can show a factual error in the application of a formula or preparation of the schedule
- An employee shows an injury impairs his or her rehabilitation such that the diminished future earning capacity is greater than reflected in the permanent disability rating schedule (the so-called “LeBoeuf” method). As a reminder, diminished future earning capacity must be directly attributed to the work-related injury, not nonindustrial factors such as general economic conditions, illiteracy, English-speaking proficiency, or lack of education.
- An employee can demonstrate the nature or severity of the claimant’s injury is not captured within the sampling of disabled workers used to compute the adjustment factor
In Dahl, both sides submitted competing vocational expert reports. As this was prior to SB863, the vocational experts testified in a hearing in March 2011. The WCJ initially ruled the rating per the AME at 59% was the only acceptable level of disability as both vocational experts agreed the employee was not precluded from the Labor Market (i.e., not 100% disabled) and would be a good rehabilitation candidate. After reconsideration, the Workers’ Compensation Appeals Board returned the matter to the WCJ to develop the record to see if the employee’s rebuttal of the DFEC resulted in disability higher than the scheduled rating (PDRS). Both experts testified again, with the employee’s expert admitting the employee was a good candidate for rehabilitation but still stating the scheduled rating understated the loss of earning capacity based on “a theoretical group of similarly situated employees.” Defendant’s expert said the scheduled rating overstated the loss of capacity.
The court in Dahl rejected the idea a vocational expert may use anything other than amenability to rehabilitation for LeBoeuf analysis. The Court of Appeal specifically chastises the employee’s expert for trying to rebut the schedule by coming up with a “competing empirical methodology” and warping statistics in favor of the employee.
Importantly, in Dahl, the Court of Appeal reminds us that it is a “rare case in which an [employee] or employer c[an] rebut a scheduled rating.” Also, in dicta, the Court of Appeal noted they are “skeptical . . . an employee may invoke [LeBoeuf] where the inability to rehabilitate results in less than a 100-percent permanent disability.”
Going forward, this case can optimistically be read as only allowing a challenge to the permanent disability schedule if an employee can prove a total preclusion, including some factors caused by the work-related injury which make it such that the employee cannot even learn any new job. Otherwise, the permanent disability schedule will apply or a defendant can prove the diminished future earning capacity is not as significant as noted by the permanent disability rating schedule. In conjunction with the recent Hallmark Marketing Corp. v. Workers’ Compensation Appeals Board (Gannon) decision, the Court of Appeal returns the focus to limitations due to the individual work-related injury suffered by one employee, keeping in mind the alternative work available to the particular employee (e.g., work from home).
Assuming this opinion stands, this is more in line with what the Legislature intended with SB 899 – controlling unnecessary and skyrocketing costs due to litigious positions by employees, especially a shift of “dueling experts” to vocational experts in lieu of medical evaluators. This is certainly a positive turn of events for the Workers’ Compensation defense community.
Hallmark Marketing Corp. v. Workers’ Compensation Appeals Board (Gannon) decision issued by California Court of Appeal
On September 21, 2015, the Court of Appeal issued this unpublished decision regarding the 1997 rating schedule. In essence, the Court of Appeal made two important findings:
- A “sheltered workplace” or working primarily from home does not automatically result in a 100% permanent disability rating
- Once an injured worker proves that he or she can only work from home, the employer has the burden to show the injured worker’s ability to compete in the open labor market.
The first finding makes sense and is a case of the Court of Appeal accepting that we are in the “information age” (as the court puts it). Eloquently put, the court notes the ability of a person to use a computer and the internet “has rendered obsolete the DEU rater’s view that having to work from home necessarily results in 100% permanent disability.” (slip opinion at p. 7).
The second finding is more important and potentially something which can be used in other cases. The Court of Appeal comes to the conclusion that an employer must show job availability if an injured worker is limited to working at home by analogizing to the “odd lot” doctrine. The odd lot doctrine is, essentially, when an injured worker has work restrictions (temporary partial disability).
At that point, the employer must show there is work available that the injured worker can perform. If there are only “special” light jobs, and they cannot be obtained, then temporary disability benefits must be paid. The Court of Appeal calls this the “odder lot” due to the limitation to work only at home.
As for the actual case, the Appeals Board still has to address if the evidence supported a finding of 100%, given its initial erroneous opinion with the “sheltered workplace” meaning a 100% rating automatically.
Applicability to other cases
Here, the idea is the employer can rebut the 100% finding with, presumably, vocational expert reporting. If the injured worker claims they are 100% disabled (or a medical report or even possibly a vocational report) then an employer’s vocational expert can seek to find some “odd lots” the injured worker can do. Whether a trial judge will agree it is reasonable, of course, is a different matter.
A vocational report must do two things to rebut the finding: (1) establish that there are available jobs; and (2) establish the injured worker’s ability to compete for those jobs. The latter is the more difficult but essential part of the vocational expert opinion. Medical opinions may delineate restrictions in addition to permanent disability values (if they don’t, make sure to depose the physician to have some restrictions stated, even if minimal, to get you something to work with). The issue of “variable ability” may be a factor, e.g., an injured worker can work for a restricted amount of time or perform certain tasks for a limited amount of time, which a vocational expert should address as well.
For assistance or additional questions regarding this or any matter, please reach out to any of our Shareholders.
A copy of the opinion is available at http://www.courts.ca.gov/opinions/nonpub/C077512.PDF