Havanis v. Calif. Dept. of Transportation (Board Panel Determination)
By Hon. Colleen Casey, Former Commissioner, California Employees’ Compensation Appeals Board
I. Medical apportionment will not be the identical as VR apportionment
Medical apportionment is a completely completely different idea from vocational apportionment. In sports activities phrases, medical apportionment could be soccer, and vocational apportionment could be cricket. Soccer is performed on a regular basis and in every single place, whereas cricket, not a lot. The enjoying fields are completely different. The tools is completely different. And the outcomes are completely completely different. Identical goes for Medical apportionment and Vocational apportionment.
Though vocational rehabilitation (VR) consultants nonetheless have a task to play, the 2023 WCAB en banc choices of Nunes made it clear that, “VR apportionment” by VR consultants is not permitted. (See Nunes v State of California, DMV (2023) 88 Cal. Comp. Cases 741 Nunes I; and Nunes v State of California, DMV (2023) 88 Cal. Comp. Cases 894 Nunes II😉 Nonetheless, the WCAB simply issued a Noteworthy Panel Determination (NPD), Havanis v. California Division of Transportation, 2024 Cal. Wrk. Comp. P.D. LEXIS 167, which explains precisely the best way to validly incorporate vocational evaluation for a profitable outcome (as mentioned under.)
A. What’s “non-viable VR apportionment”?
Non-viable VR apportionment happens when the VR knowledgeable concludes that medical apportionment shouldn’t scale back a 100% everlasting and complete incapacity (PTD) dedication based mostly on vocational evaluation, reminiscent of in an Ogilvie rebuttal of a strict score of PD. (See Nunes supra and the first DCA case of Ogilvie v. WCAB (2011) 76 Cal. Comp. Cases 624.)
If the VR knowledgeable can’t make this dedication, who can?
Per LC §4663, solely physicians are allowed to supply an opinion as as to if medical apportionment applies in any given scenario. Due to this fact, it’s completely legitimate for a medical knowledgeable to make that very same dedication as a VR knowledgeable would possibly make, utilizing information obtained from VR consultants, however VR consultants at the moment are barred from doing so.
B. Nunes resolution set the boundaries
Within the Nunes circumstances, the VR knowledgeable decided that applicant was 100% completely completely disabled (PTD) based mostly on a vocational evaluation. He reasoned that her industrial harm triggered her to not be amenable to retraining and thus rendered her with a 0% future incomes capability. The VR knowledgeable opined applicant’s 100% PTD award based mostly on a vocational evaluation shouldn’t be diminished by medical apportionment to non-industrial elements. He defined that these non-industrial elements existed previous to applicant’s industrial harm of 9/13/2011 and but she was nonetheless “able to performing her common and customary work with zero obstacle till the harm.” The VR knowledgeable didn’t perceive why her 100% PTD award ought to be diminished by apportionment to “earlier than the harm” elements in the event that they performed no function in her incapacity.
The logic behind the VR’s opinion is smart. In truth, the Nunes courtroom left the door open for applicant to be granted an “un-apportioned award” by stating, “we observe that an un-apportioned award could also be acceptable the place it may be established via competent medical and/or vocational proof that the present industrial harm is the only causative issue for the worker’s residual everlasting incapacity.” (Emphasis added.)
So how may the VR knowledgeable’s conclusion be thought of “non-viable?”
As a result of it was the VR knowledgeable who made that dedication of 100% PTD excluding the medical apportionment. If it had been the medical evaluator who had reviewed the report of the VR knowledgeable and who had decided that applicant was 100% PTD on a vocational foundation due solely to this new industrial harm of 9/13/2011, that opinion would possibly properly have been thought of “substantial medical proof” upon which a choose may rely. (After all, the doctor’s opinion would even have to incorporate a “how & why” evaluation in keeping with the necessities of a sound apportionment findings in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604.)
The Nunes courtroom held as follows:
“1. Part 4663 required a reporting doctor to make an apportionment dedication and prescribes the usual for apportionment. The Labor Code makes no statutory provision for ‘vocational apportionment.’
2. Vocational proof could also be used to handle points related to the dedication of everlasting incapacity.
3. Vocational proof should deal with apportionment and should not substitute impermissible ‘vocational apportionment’ instead of in any other case legitimate medical apportionment.”
(Discover this quote in case of Braaten v. Lloyd W. Aubry Co., Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 81.)
C. Medical evaluation is completely different from vocational evaluation
The Nunes courtroom clarified that there are two methods to research apportionment, each of that are viable solely when carried out by a medical knowledgeable as follows:
(1) Medical Evaluation: Most often, the PD calculation is predicated on numerical values derived from descriptions and measurements set forth within the AMA Guides fifth Version pursuant to Labor Code Sections 4660 and 4660,1. As soon as the extent of PD is decided, per LC 4663, the doctor, and solely the doctor, is then mandated to use medical apportionment (no matter whether or not these elements manifested in pathology, asymptomatic prior circumstances, and many others.).
(2) Vocational Evaluation: Nonetheless, in different circumstances, the last word dedication of PD will not be based mostly on numerical values from the AMA Guides, however from a vocational evaluation, reminiscent of when an applicant is profitable with an Ogilvie rebuttal, leading to 100% PTD. In these circumstances, the doctor should decide causative industrial elements versus non-industrial causation elements of the 100% PTD outcome. (These elements could also be manifested in diminished earnings, work restrictions, or an incapacity to carry out job duties.)
It’s vital for attorneys to know the distinction between these two forms of analyses in order that they will work up correct and viable proof to current to the choose at trial, relying upon which evaluation is relevant to their given set of details.
Most attorneys are clear as to how medical apportionment works. Nonetheless, confusion units in when the PD calculation is predicated on a vocational evaluation. This is able to happen in conditions reminiscent of an Ogilvie rebuttal. The issue is, many practitioners are unclear as to how apportionment is utilized when based mostly on a vocational, reasonably than a medical basis.
II. What’s the roadmap for vocational evaluation?
A. “Lack of incomes capability” is the important thing to the Ogilvie case
First, the WCAB explored the premise of the Ogilvie case which created the necessity for the idea of vocational evaluation. In that case, the DCA defined that “lack of future incomes capability” is without doubt one of the three ways in which a strict PD score could also be rebutted.
In line with the WCAB the “focus of apportionment modifications when utilizing an Ogilvie rebuttal as a result of the outlined impairment modifications.”
The WCAB goes on to elucidate the 5 steps of their thought course of for this pronouncement:
- “When applicant is searching for to rebut the PDRS utilizing Ogilvie, incapacity is not rated as an impairment below the AMA Guides.
- As an alternative, the impairment is now the work restrictions assigned to applicant from the economic harm.
- The incapacity is the impact of these work restrictions on applicant’s capacity to rehabilitate and compete within the open labor market.
- Accordingly, medical apportionment, when analyzed below an Ogilvie rebuttal, should deal with the reason for the work restrictions.
- As applicant is searching for an award of 100% incapacity, the reason for the work restrictions contributing to applicant’s incapacity to work have to be 100% industrial, with out apportionment.”
B. Whose burden is it anyway?
Due to this fact, applicant attorneys have the burden of proof on this concern. They need to show that the economic harm is the sole causative issue for the employee’s 100% PTD. If applicant fails on this burden, the 100% PTD Ogilvie rebuttal award shall be diminished by the share of non-industrial causation.
Due to this fact, it’s within the curiosity of the protection to supply up proof that establishes how each industrial elements, in addition to non-industrial elements, play a causative function in applicant’s 100% PTD, and that the economic harm is NOT the only explanation for applicant’s 100% PTD.
So, how can we get there? How do the events acquire the data essential to show their respective burdens in circumstances the place vocational evaluation performs a key function?
Happily, on 5/3/2024, the WCAB issued a Noteworthy Panel Determination (NPD), Havanis v. California Division of Transportation, 2024 Cal. Wrk. Comp. P.D. LEXIS 167, that provides us a plan to comply with when growing the report on this concern. Set forth under is a four-step information to make use of so as to set up a 100% PTD Ogilvie rebuttal award (with out a deduction for medical apportionment). Seems, all of it revolves round applicant’s work restrictions.
“1) Applicant has been assigned a piece restriction(s), which requires substantial medical proof.
2) The work restriction(s) precludes applicant from rehabilitation into one other profession area, which requires vocational knowledgeable proof.
3) The work restriction(s) precludes applicant from competing on the open labor market, which requires vocational knowledgeable proof.
4) The reason for the work restriction(s) is 100% industrial, which requires substantial medical proof.” (emphasis in unique)
The WCAB defined their rationale as follows:
“To be clear, we’re targeted solely on these restrictions that contribute to the vocational knowledgeable’s findings. An applicant can have a number of work restrictions, a few of that are non-industrial. If the economic work restrictions, standing alone, preclude applicant from rehabilitation and preclude applicant from competing on the open labor market, applicant has met their burden on causation of incapacity. If applicant’s preclusion from rehabilitation and work is triggered or contributed by both non-industrial work restrictions or partially industrial work restrictions, applicant fails their burden on causation of incapacity.”
C. WCAB offers applicant second chew of the apple
The courtroom decided on this specific case that applicant had failed their burden of proof on the difficulty of whether or not applicant’s 100% PTD shouldn’t be diminished by medical apportionment. Nonetheless, the WCAB defined why they had been giving applicant a second chew of the apple as follows:
“Right here, applicant did not show that the work restrictions assigned are 100% industrial as a result of no occasion requested that query to any of the docs. This requires medical proof. As we’re clarifying this concern for the primary time and conserving with our responsibility to perform substantial justice, the prudent course is to return this matter to the trial stage for additional discovery.”
III. Takeaways from NPD of Havanis
A. What’s the VR knowledgeable’s duty when applicant is arguing an Ogilvie rebuttal?
The VR knowledgeable ought to remark and clarify how and why applicant’s 100% lack of incomes capability is 100% as a result of industrial harm and is 0% on account of non-industrial elements. (For example, what if applicant’s 100% lack of incomes capability was on account of a failed industrial spinal surgical procedure which resulted in work restrictions that standing alone with out regard to some other impairment(s) would trigger applicant to be 100% PTD? These details and the vocational argument used was profitable within the pre-Nunes case of Bagobri v. AC Transit, 2019 Cal. Wrk. Comp. P.D. LEXIS 384 (Appeals Board noteworthy panel resolution).)
Then again, if the VR knowledgeable determines that there are non-industrial or prior industrial causes/awards that are partially liable for a 100% lack of incomes capability, the VR knowledgeable ought to determine every of the causal non-industrial elements which can be particularly associated to applicant’s 100% lack of incomes capability.
B. What’s the medical knowledgeable’s duty when applicant is arguing an Ogilvie rebuttal?
It’s as much as the medical evaluator to evaluation the opinion or opinions of the VR knowledgeable(s) and make one among two determinations:
- If the only explanation for applicant’s incapacity to be vocationally retrained is 100% as a result of industrial harm, then the ensuing PD is 100%, no matter different medical apportionment which will exist.
- If the reason for applicant’s incapacity to be vocationally retrained is comprised of each industrial and non-industrial elements, then medical apportionment have to be utilized to cut back the 100% PTD from a profitable Ogilvie rebuttal by the % of non-industrial elements. This medical apportionment is required to cut back the award under 100%, even when all evaluators (vocational and medical consultants) agree applicant is 100% unable to return to the workforce and has 100% lack of incomes capability in consequence.
IV. Conclusion
Hopefully the WCAB’s new paradigm for calculation of 100% PD circumstances which can be based mostly on vocational proof will help practitioners in growing the report for trial. Though the WCAB was gracious in granting the applicant one other chew of the apple on this case, they is probably not so lenient sooner or later. The clever litigator will incorporate this new paradigm into their current trial prep guidelines.
NPDs with comparable details and holdings:
For extra perception on this concern, see Hon. Marguerite Sweeney, Former Commissioner, California Employees’ Compensation Appeals Board’s LEXIS article of 8/16/2023 entitled, “California: Nunes and the Path Forward: The Use of Vocational Evidence in Determining Permanent Disability and Apportionment.”
Reminder: Board panel choices will not be binding precedent.
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