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.

After being evaluated by various physicians some of whom apportioned permanent disability,her vocational expert addressed apportionment by claiming that “from a vocational standpoint, Ms. Nunes’ preexisting/non-industrial degenerative condition had zero impact to her earning capacitygiven applicant’s work history.”

Her vocational expert went on to say that “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.”

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.”

On June 22, 2023 the Appeals Board in the en banc decision of Grace Nunes I v State of California, Department of Motor Vehicles rescinded the F&A issued by the WCJ.

It ruled that (1) Labor Code1 section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and that the Labor Code makes no statutory provision for “vocational apportionment;” (2) that vocational evidence may be used to address issues relevant to the determination of permanent disability; and (3) that vocational evidence must address apportionment, and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.

As an aggrieved party for the first time, Nunes subsequently filed her Petitioned for Reconsideration of the En Banc Opinion and Decision After Reconsideration which was denied on August 29, 2023 in the second En Banc decision of Grace Nunes II v State of California, Department of Motor Vehicles -ADJ8210063 -ADJ8621818 (August 2023).

Applicant contends in her Petition for Reconsideration that the apportionment analysis described by the QME is speculative and not substantial, and that applicant is entitled to an unapportioned award. Applicant further contends that vocational evidence may be used to characterize and quantify permanent disability, and that the vocational opinions expressed by vocational experts may differ from the medical evidence.

Applicant also asserts that the prohibition against using vocational apportionment in place of otherwise valid medical apportionment will result in “pass-through” apportionment that is not substantial evidence; that defendant failed to meet its burden of proof under section 4664; and that our June 22, 2023 Opinion may result in protracted discovery and litigation.

In response the Board concluded that “applicant has not established that our decision to return the matter to the trial level for development of the record and to comply with section 5313 was made in error, which, standing alone, may constitute grounds for denial of the Petition.”

Additionally the Board said “we wish to address the rhetoric used by applicant in the Petition. Applicant contends that the consequences of our decision proscribing “vocational apportionment” will be “disastrous” and will lead to an “implosion of the [workers’ compensation] system. Applicant characterizes our decision as ‘directionless’ and potentially requiring the application of ‘invalid’ medical apportionment, the result of which would be “devastating to the worker’s [sic] compensation environment. Applicant further contends that ‘lawyers’ on both sides may use this case as a sword to distract, delay and obfuscate “

“We find these arguments to be unpersuasive and inflammatory. …. Our Opinion does not require the application of invalid apportionment by the parties or by the WCJ, and in those instances where there is a significant question as to the validity of a physician’s medical apportionment opinion, the vocational expert is free to offer their analysis in the alternative.”

“In summary, reconsideration is inapposite because applicant’s petition offers no challenge to our determination that the current record does not comply with section 5313. We reject applicant’s contention that a vocational expert may substitute a competing theory of apportionment in place of otherwise valid legal apportionment, as inconsistent with statutory and case law authority. We further reject applicant’s contention that evaluating physicians are unwilling or unqualified to evaluate vocational evidence.”