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VOCATIONAL EXPERTS (VEs)

Vocational Experts played a prominent role in workers' compensation practice during the years that vocational rehabilitation was a benefit under former Labor Code §139.5 (1/15/1966 through 12/31/2003). After vocational rehabilitation sunsetted, some experts remained to evaluate under LeBoeuf or later, Ogilvie.

Under SB 863, VEs will still be allowed, but a fee schedule was mandated under Labor Code §5307.7. Also added was a requirement that their reports be in writing (Labor Code §5703) and subject to Labor Code §139.3.

The leading Supreme Court case of LeBoeuf v. WCAB (1983) 34 Cal.3d 234 continues to provide the basis for attacking permanent disability ratings that do not accurately reflect the injured worker's ability to work competitively. Injuries pre-1/1/13 would continue to be determined under Ogilvie v. WCAB. Injuries on or after 1/1/13 come under new Labor Code §4660.1, which eliminated diminished future earning capacity (DFEC) and the FEC modifier. For injuries that leave the worker unemployable, where the case is being proved up under Labor Code §4662, presumably LeBoeuf would still be used to show permanent total disability in cases that do not fall under (a) through (d).

Vocational evidence, to be considered substantial evidence, must explain the "how" and the "why" and be based on adequate history and meet other applicable tests. A mere review of medical records, without analysis of the impact on feasibility for rehabilitation or employability, is of no value.

In a writ denied case, Mata v. WCAB (2011) 76 Cal. Comp. Cases 833,  the Board accepted the WCJ's findings that vocational evidence established a synergistic effect resulting in a higher level of permanent disability than the combined values of the medical reports (a "range of evidence" finding). But the WCJ rejected finding 100% total PD due to flaws in the vocational evidence (e.g., "I did not find this report to have much probative weight, because Ms. [VE] did not specify why applicant's physical limitations precluded him from participating in vocational rehabilitation. I consequently found her report to be conclusionary. Nor did Ms. [VE] definitively state that applicant is not likely to ever be able to return to the open labor market." The defense VE report was deemed not to be substantial evidence because it did not review a later medical report. The WCJ opined: "Medical opinion that is not based upon an adequate medical history does not constitute substantial evidence. [citations omitted]. A similar rationale should apply to vocational expert opinion."

Similarly, a Board panel decision, Mrozek-Payne v. Spectre Air & Ground Freight (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 427:

"The vocational rehabilitation expert admitted at trial that he did not meet with the applicant, he did not complete a formal work evaluation, and that the only records that he reviewed were the agreed medical evaluator (AME) reports of [rheumatologist and  psychiatrist]. In order to constitute a valid vocational expert opinion, the vocational expert must bring something more to the table than just a reading of medical reports. A WCJ has the requisite expertise in reading and weighing expert medical reports. Neither AME opined that the applicant was permanently totally disabled....."

Although an applicant may certainly be permanently totally disabled with a Global Assessment of Functioning (GAF) score of 45, there must be a rationale offered beyond simply the GAF score as to why the applicant is precluded from working. (citing Mata, above). Here, the vocational expert expressed a mere conclusion which was not based on an adequate investigation. We note that in the recent case of Rodrigues v. Workers' Comp. Appeals Bd. (2012) 77 Cal.Comp.Cases (writ denied), review den. August 8, 2012, we held that a vocational opinion that was made without an individualized work up did not constitute substantial evidence."

It is not known now what role, if any, vocational experts will play in the Return-to-Work-Program under Labor Code §139.48 (added by SB 863), which established a return to work fund under the control of the Director of the Department of Industrial Relations "for the purpose of making supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings loss."

Label Item Links Comments
Labor Code Labor Code §5703 governs vocational evidence. SB 863 added: (j) Reports of vocational experts. If vocational expert evidence is otherwise admissible, the evidence shall be produced in the form of written reports. Direct examination of a vocational witness shall not be received at trial except upon a showing of good cause. A continuance may be granted for rebuttal testimony if a report that was not served sufficiently in advance of the close of discovery to permit rebuttal is admitted into evidence. LC §5703  
  Labor Code §5307.7 requires a fee schedule "that shall establish reasonable fees paid for services provided by vocational experts, including, but not limited to, vocational evaluations and expert testimony determined to be reasonable, actual, and necessary by the appeals board.
(b) A vocational expert shall not be paid, and the appeals board shall not allow, vocational expert fees in excess of those that are reasonable, actual, and necessary, or that are not consistent with the fee
schedule adopted by the administrative director."
LC §5307.7
 
Regulations/Rules

Rule §10601. Copies of Non-Medical Reports and Records: "Where documents, including videotapes, are to be offered into evidence, copies shall be served on all adverse parties no later than the mandatory settlement conference, unless a satisfactory showing is made that the documents were not available for service by that time."

Rule §10606.5: Vocational Experts’ Reports as Evidence

8 CCR §10601









Vocational Experts’ Reports as Evidence

 
Cases See above

LeBoeuf v. WCAB
(1983) 34 Cal.3d 234: originally about vocational rehabilitation and reopening, this leading case now stands for the principle: "A  permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market. The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability. A prior permanent disability rating and award which fails to reflect that fact is inequitable."

In Ogilvie v. WCAB (2011)197 Cal. App. 4th 1262: "Another way the cases have long recognized that a scheduled rating has been effectively rebutted is when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee's diminished future earning capacity is greater than reflected in the employee's scheduled rating." The Court noted that "While some of the briefing provided to the court may be read to suggest that under LeBoeuf a disability award may be affected when an employee is not amenable to vocational rehabilitation for any reason, the most widely accepted view of its holding, and that which appears to be most frequently applied by the WCAB, is to limit its application to cases where the employee's diminished future earnings are directly attributable to the employee's work related injury, and not due to nonindustrial factors such as general economic conditions, illiteracy, proficiency to speak English, or an employee's lack of education."

In a recent writ-denied case, Holz v. WCAB (Cal. App. 2d Dist. Apr. 25, 2013), the Court did not disturb the WCAB order compelling the injured worker to be evaluated by the defense VE. The WCAB found authority in Labor Code §5708 and 8 CCR §10348 and held that the WCJ and the Appeals Board could compel an applicant to attend an evaluation of a vocational expert when Applicant had placed rebuttal of the DFEC adjustment in issue.



LeBoeuf v. WCAB
















Ogilivie v. WCAB
Forms      
Websites    
Practice Tips  When getting reports under the AMA Guides ask the doctor to discuss in detail what work restrictions apply, including whether there is slight, moderate or severe pain as defined by 8 CCR §9727.

Make sure the VE is relying on substantial evidence. If necessary, send the report to the forensic evaluator for his/her blessing (with reasonable medical probability). Since the vocational report is non-medical, make sure to seek permission from the other side as required by Labor Code §4062.3 before sending the report to the evaluator. For example, the injured worker may talk of being tired and in pain all the time, and unable to do chores with any reliable frequency, but without medical evidence connecting the symptoms to an industrial injury, the VE cannot rely on that for his or her opinion about employability.

Make sure the VE's report contains language required by Labor Code §139.3 and 5703 and 8 CCR 10606.5 (proposed regulation can be found here).
   
Articles
Vocational Rehabilitation Experts by Colleen Casey

How to Prove a LeBoeuf Rebuttal

Presenting Evidence of the Vocational Expert Post SB 863


Vocational Rehabilitation Experts


How to Prove a LeBoeuf Rebuttal

Presenting VE Evidence

Note change in LC §5703
Magazine Articles Work Impairment and Disability: How Should Vocational Rehabilitation Providers be Utilized by Robert Hall,  Ph.D., CRC, CDMS How the VE can bridge the gap between impairment and disability determinations
The law has changed but there are good ideas here that still apply
Roundtable    
Miscellaneous      

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