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The Court of Appeal published decision in Department of Corrections and Rehabilitation v. Workers’ Compensation Appeals Board (Fitzpatrick (2018) 27 Cal. App. 5th 607 [238 Cal. Rptr.3d 224, 83 Cal. Comp. Cases 1680] pertained to an injury before SB 863 in 2013.

The case rejected a 100 percent disability award that did not first rate a case using the AMA Guides, and then follow the steps outlined in the 2005 Rating Schedule, and then a rational why some other scheme should be used instead.

The Court of Appeal concluded that Section 4660 addresses how the determination on the facts shall be made in each case for injuries occurring before January 1, 2013. Indeed, section 4660 expressly applies to the determination of the percentages of permanent disability. A final permanent disability rating is obtained by going through the steps outlined in the 2005 Schedule.

The logic of the Fitzpatrick case would seem to equally apply to injuries after 2013, on the theory that the scheme for rating permanent disabilities is prima facie evidence to be rebutted only by more compelling evidence that it is inappropriate in a given case.

However, recent panel decisions show a willingness of the WCAB to award total disability based solely on a vocational rehabilitation report without any discussion of why the AMA Guides rating would be inappropriate. Here is a recent example.

On January 23, 2015 Rafael Sandoval suffered an admitted industrial injury to his cervical and lumbar spine while employed as an iron worker by The Conco Companies.

Dr. Mandell, the AME in orthopedics, described applicant’s injury as severe spinal stenosis and disc herniation in the cervical spine and lumbar disc disease with radiculopathy, requiring four level laminoplasty from C3-C7, with hardware implantation, as well as a subsequent cervical discectomy.

Mr. Van de Bittner, applicant’s vocational expert, evaluated applicant on December 15, 2016, and issued a report on applicant’s vocational feasibility, employability and earning capacity. Mr. Van de Bittner concluded that applicant was not capable of returning to the labor market due to his physical limitations, noting that he lacked transferrable skills without consideration of non-industrial factors, per the requirements of Ogilvie.

The WCJ found applicant sustained 100% permanent disability. The WCAB Decision.After Reconsideration, affirmed the WCJ’s Findings, Award and Order in the case of Sandoval v The Conco Companies. Neither the Report and Recomendation on Petition for Reconsideration by the WCJ, or the Opinion and Order Granting Reconsideration report what the rating using the AMA Guides and 2005 Rating Schedule would have been, nor why it would be rejected in favor of the Vocational Rehabilitation Expert. The decision went directly to the simple metrics of a vocational evaluation seemingly unfettered by the logic of the Fitzpatrick decision by the Court of Appeal.

There is no way of knowing what steps are required, if any, to ignore the AMA Guides, the Rating Schedule, and case law in favor of another scheme of awarding total disability.