Grace Nunes sustained two admitted industrial injuries while employed by the State of California, Department of Motor Vehicles. In Case No. ADJ8210063, she sustained injury to her neck, upper extremities, and left shoulder, on September 13, 2011. In Case No. ADJ8621818, she sustained injury to her bilateral upper extremities from September 13, 2010 to September 13, 2011.
The parties selected Melinda Brown, M.D., to act as the qualified medical evaluator (QME) in orthopedic medicine. Dr. Brown opined that “[functionally, I do not believe [applicant] would be employable in the open-labor market based on evaluation today … I do believe her inability to work is based on a pain basis and function.”
Applicant’s vocational expert Gene Gonzales evaluated her and issued a report addressing her feasibility for vocational retraining. He Mr. concluded that the “transferable skills analysis tool revealed that applicant sustained a 100 percent loss of access to her open labor market.” Gonzales also addressed apportionment by acknowledging Dr. Brown’s determination that applicant’s left shoulder injury was 100 percent industrial, while 40 percent of the cervical spine injury was attributed to nonindustrial factors. Mr. Gonzales said that “From a vocational standpoint, Ms. Nunes’ preexisting/non-industrial degenerative condition had zero impact to her earning capacity given applicant’s work history.”
Gonzalez went on to say that “the limitations that have rendered Ms. Nunes 100 percent permanently and totally disabled are a direct result of the left shoulder and cervical spine injury on September 13, 2011. It should be noted that standing alone, absent the right elbow/shoulder condition, carpal tunnel syndrome, and diabetic condition, Ms. Nunes’ functional limitations and chronic pain clearly render her 100 percent permanently and totally disabled. Without question, vocational apportionment in Ms. Nunes’ case is 100 percent industrial and attributable to the specific injury of September 13, 2011.“
Dr. Koobatian performed a VR assessment on behalf of the employer and concluded that “it is likely that Ms. Nunes is not employable in the competitive labor market resulting in a substantial loss of future earning capacity.” However, the report also detailed nonindustrial factors of apportionment to the cervical spine, right upper limb, and left carpal tunnel, as identified by Dr. Brown. He concluded that “while the majority of Ms. Nunes’ present medical barriers are industrial in origin …. at least 10% vocational apportionment from non-industrial medical factors is attributable to Ms. Nunes’ inability to compete in the open labor market and participate in vocational rehabilitation services.“
The parties proceeded to trial on the issue of permanent disability, apportionment, attorney’s fees, and whether “applicant rebutted the AMA Guides for permanent total disability.” The WCJ found that applicant is entitled to an unapportioned award of 100 percent industrial disability based on the analysis that “applicant has rebutted the AMA Guides. She’s found to be 100% disabled as there is no evidence of previous loss of earnings capacity.”
Reconsideration was granted and the F&A was rescinded in the En Bank decision of Grace Nunes v State of California, Department of Motor Vehicles -ADJ8210063- ADJ8621818 (June 2023).
Section 4663(c) does not provide for collateral sources of expert opinion as to apportionment, and further does not authorize the application of any other standard of apportionment. “Accordingly, ‘vocational apportionment’ offered by a non-physician is not a statutorily authorized form of apportionment. In addition, apportionment determinations that deviate from the mandatory standards described in section 4663(c) are not a valid basis upon which to determine permanent disability.”
“Pursuant to section 4663(c), evaluating physicians play an integral role in the determination of permanent disability. It is therefore appropriate and often necessary that evaluating physicians consider the vocational evidence as part of their determination of permanent disability, including factors such as whether applicant is feasible for vocational rehabilitation, and whether the reasons underlying applicant’s non-feasibility for vocational retraining arise solely out of the present industrial injury or are multifactorial.”
“The same considerations used to evaluate whether a medical expert’s opinion constitutes substantial evidence are equally applicable to vocational reporting. In order to constitute substantial evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as “how and why” any specific condition or factor is causing permanent disability.”
“While vocational evidence may be utilized to assess factors of permanent disability, including whether an injured employee is feasible for vocational retraining, in order to constitute substantial evidence, vocational reporting must consider valid medical apportionment.” … “The apportionment analysis required under 4663(a) and Escobedo, supra, does not permit reliance on facts offered in support of a competing theory of apportionment.”
“Accordingly, a vocational report is not substantial evidence if it relies upon facts that are not germane, marshalled in the service of an incorrect legal theory. Examples of reliance on facts that are not germane often fall under the rubric of “vocational apportionment,” and include assertions that applicant’s disability is solely attributable to the current industrial injury because applicant had no prior work restrictions.”
Thus the WCAB En Banc concluded by saying:
1. Section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for “vocational apportionment.”
2. Vocational evidence may be used to address issues relevant to the determination of permanent disability.
3. Vocational evidence must address apportionment, and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.
“Applying these principles to the present matter, we conclude that the current medical and vocational record is analytically incomplete. Accordingly, we will rescind the F&A and return this matter to the trial level for further proceedings consistent with this opinion.”