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Thomas Hasson sustained an industrial cumulative trauma injury to his lumbar spine and bilateral hips as a result of working 18 years as a stock clerk for Ann Taylor, a job that required repetitive strenuous lifting and bending.

The injury to his lumbar spine and bilateral hips caused marked limitations in his ability to return to the open labor market. The record establishes that applicant’s 2014 right hip arthroplasty was not successful, as applicant’s right hip pain subsequently increased. Two and a half years post arthroplasty, applicant was described by Dr. Knight as being in “moderate to severe pain in the right hip with limited range of motion,” and was “quite limited in this ability to do prolonged walking, standing or other activities.” He concluded applicant was “incapable of returning to work as a result of his ongoing pain.”

Applicant obtained a vocational evaluation from Mr. Frank Diaz, who found that as a consequence of the disability from his cumulative trauma injury, applicant was not amenable to vocational rehabilitation and had lost his ability to return to the labor market.

The WCJ determined that applicant is permanently totally disabled, based upon substantial evidence in the record that establishes that applicant is unable to benefit from vocational rehabilitation or return to full time employment in the labor market.

The WCAB affirmed the WCJ’s determination and denied defendant’s Petition for Reconsideration in the panel decision of Hasson v Ann Taylor and Travelers Insurance Co.

The issue on reconsideration is whether the vocational evidence constitutes substantial evidence to support the conclusion that applicant was permanently totally disabled due to his inability to benefit from vocational rehabilitation, per Ogilvie v. Workers’ Comp. Appeals Bd.; Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) and LeBoeuf v. Workers’ Comp. Appeals Ed.

In Dahl, the Court of Appeal held that to rebut the scheduled rating, applicant must prove that the industrial injury precludes vocational rehabilitation, writing in pertinent part as follows: The first step in any LeBoeef analysis is to determine whether a work-related injury precludes the claimant from taking advantage of vocational rehabilitation and participating in the labor force. This necessarily requires an individualized approach .. . It is this individualized assessment of whether industrial factors preclude the employee’s rehabilitation that Ogilvie approved as a method for rebutting the Schedule. (Dahl, 80 Cal.Comp.Cases at 1128.)

The vocational evidence the WCJ relied upon, the reporting of Mr. Diaz, indicates that applicant is not amenable to vocational rehabilitation and that Dr. Knight’s and Dr. Rovner’s work restrictions preclude applicant from returning to full time employment. Mr. Diaz’s “individualized assessment” of the vocational factors affecting applicant’s ability to return to work shows that the medical restrictions do preclude applicant from gainful employment. We find his analysis of applicant’s vocational limitations to constitute substantial evidence to support the WCJ’s determination.

This WCAB panel seems again to have sidestepped 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] although it was cited in the Opinion .

The Court of Appeal in Fitzpatrick 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.