Robert Gonzales was employed by Northrop Grumman Systems structural aircraft mechanic when he suffered an admitted CT injury to both shoulders, both knees, cervical spine, lumbar spine, and internal injury in the form of heart disease and hypertension.

The WCJ found 85% medical apportionment with regard to the permanent disability attributable to the cervical and lumbar spines, left knee and right knee; 100% industrial apportionment with regard to left shoulder, right shoulder and right wrist; and 50% industrial apportionment with regard to hypertension and coronary artery disease.

The medical apportionment was based upon the findings of agreed medical examiner (AME) Steven Silbart, M.D., and panel qualified medical examiner (PQME) Benjamin Simon, M.D.,

However, the vocational expert who reported on behalf of Mr. Gonzales said that “It must be understood that the concept of apportionment in medicine and in vocational issues are two different concepts which are not always the same as one another. In medicine the concept applies to impairment, whereas in vocational issues it is disability/ employability, and the two are different from one another.”

The WCJ therefore found that the injury caused 100% permanent disability without apportionment. Reconsideration was denied in the panel decision of Gonzales v Northrop Grumman – ADJ9689895 (June 2022).

The employer contended that the WCJ erred in finding applicant 100% permanently disabled, arguing that total permanent disability cannot be found where there is valid apportionment, and that the vocational expert opinion was not substantial evidence.

In deciding the dispute, the WCAB reviewed Ogilvie v. Workers’ Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 as well as Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 119], both landmark decisions on this issue.

The primary method for rebutting the scheduled rating is based upon a determination that the injured worker is “not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating.”

The case authority reviewed by the WCAB conceded that “The employee’s diminished future earnings must be directly attributable to the employee’s work-related injury and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency in speaking English, or an employee’s lack of education.”

In this case, there was ample evidence of medical apportionment. However the record summarized in this decision said nothing about non-industrial vocational factors listed as factors that cannot be a directly attributable to the work related injury. Lacking such evidence by way of rebuttal to the vocational expert, or a cross examination of the claimant’s expert to establish and embellish these factors, the award was supported by substantial evidence.

The clear take away from this decision is to be aware of the difference between apportionment based on medical factors and apportionment based on vocational factors, and thoroughly develop evidence on both.