by Sure Log
It has long been recognized that an employee’s ability to participate vocational retraining is a significant factor that must be considered in assessing the worker’s permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) An employee’s inability to compete in the open labor market could support an award of permanent total disability. Even though vocational rehabilitation was repealed and replaced with the supplemental job displacement benefit, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal held that an employee could still rebut a scheduled rating by establishing that he or she was not amenable to rehabilitation.
Although vocational evidence is often used to establish that an employee is not amenable to rehabilitation, the WCAB also commonly relies on medical evidence to establish a worker’s inability to work, and permanent total disability. In Applied Materials v. WCAB (2021) 86 CCC 331, however, the 6th District Court of Appeal held that the WCAB erred in awarding 100 percent permanent disability based on a psychiatric QME’s opinion that a worker’s industrial post-traumatic stress disorder (PTSD) rendered her unable to work. It found that the QME was not a vocational expert and was not qualified to opine on the worker’s ability to participate in vocational rehabilitation, take advantage of training opportunities, find work from a vocational perspective or that she was 100 percent disabled from working in the open labor market. So, Applied Materials raised questions as to whether a medical opinion alone could support an award of permanent total disability.
In a recent decision, Wilson v. Kohls Department Stores, 2021 Cal. Wrk. Comp. P.D. LEXIS 322, the WCAB provided some answers. In that case, the applicant sustained an admitted injury to her lumbar spine, left ankle and in the form of complex regional pain syndrome, and there was evidence she required the use of a wheelchair. At deposition, the AME testified that the applicant was not amenable to vocational rehabilitation because of her pain medication and inability to get around. Her vocational expert reported that post-injury, the applicant had 6.9 percent access to the labor market, but he did not comment on her loss of future earning capacity.
The WCAB upheld the WCJ’s conclusion that the applicant did not provide substantial medical or vocational evidence to support an award of permanent total disability. It explained that a finding of PTD could be based on medical evidence, vocational evidence or both. It also said that a doctor was permitted to opine that an applicant was medically precluded from returning to work.
It found, however, that the AME in that case provided an opinion regarding the applicant’s ability to participate in rehabilitation, and it believed that the pronouncement was beyond his expertise. It found that the doctor did not preclude the applicant from returning to work on a medical basis, but opined only as to limited work restriction. It found that the applicant’s vocational expert did not believe that the AME’s restrictions precluded her from gainful employment. Accordingly, it concluded that there was no substantial medical or vocational evidence to support an award of permanent total disability, and awarded the applicant 87 percent permanent partial disability.
So, although an award of permanent total disability could be based on medical evidence, vocational evidence or both, the different experts have different roles. Doctors are limited to determining medical issues. They may opine that an employee is precluded from returning to work on a medical basis. The case even suggests that a doctor may report that an applicant is medically precluded from participating in vocational retraining. But doctors should not provide a vocational feasibility opinion — that is the role of a vocational expert. If a doctor steps into the role of a vocational expert, or vice versa, the WCAB could find their opinions to be insubstantial as beyond their expertise.
This case will not be the last word on when and how medical and vocational evidence can be used to support an award of permanent total disability. When medical and vocational experts agree that an employee is permanently totally disabled, the WCAB commonly will rely on their opinions to support an award. If, however, there’s disagreement among the experts, or if there’s an issue as to whether their opinions are substantial, practitioners must carefully review the reports to determine whether they can support an award.
For further discussion on this topic, see Sullivan on Comp Section 10.19 Rebutting Schedule Under Ogilvie.
Sure Log, of Counsel, Michael Sullivan & Associates, LLP, is a specialist in workers’ compensation defense and related labor law issues. More about Mr. Log here.