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New Vocational Expert Case Changes Everything by Explaining They Meant What They Said Before

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.