A recent panel decision out of Marina del Rey has introduced what may be the most frightening new concept in California workers’ compensation case law since the Kite decision came down.

Gregory P. Fletcher

In Gonzales vs. Northrop Grumman Systems Corporation (ADJ9689895), the Workers' Compensation Appeals Board affirmed a finding by the trial judge of 100% permanent total disability, even in the face of AME and QME opinions that both found apportionment to nonindustrial factors. The decision is a panel decision, which means that it can serve as persuasive authority but is not binding.

It is now well-established that the AMA guides rating can be rebutted with vocational evidence, and the inquiry is whether an injured worker is amenable to rehabilitation. However, in Acme Steel v. WCAB (Borman), it was held that even if vocational evidence is used to rebut the rating of the AME or QME, the medical evaluator’s findings regarding apportionment must be considered.

In the recent Gonzales case, the WCAB pointed to language in Dahl approving an “individualized assessment of whether industrial factors preclude the employee’s rehabilitation that Ogilvie approved as a method for rebutting the schedule.”

The vocational counselor in the Gonzales case, Robert Leibman, wrote in his report that the concept of apportionment in medical and in vocational analyses are different.

He conceded that the agreed medical evaluator, Dr. Silbart, apportioned 15% of the cervical, lumbar and bilateral knee disability to nonindustrial degenerative changes and that the internal medicine evaluator, Dr. Simon, apportioned 50% of applicant’s permanent disability from hypertension to nonindustrial causes, as well as 50% of applicant’s coronary artery impairment to similar nonindustrial causes.

However, the vocational expert pointed out that the applicant was able to perform his job with Northrop Corp. for 23 years up until his industrial injury. He also determined that the synergistic and global effect of the overall physical and psychological impairment and residual functional capacity would prevent the applicant from performing work at even sedentary or light levels on a regular schedule part-time basis. He pointed out that a sheltered type of environment is still considered 100% in terms of disability.

The WCAB determined that the Gonzales trial judge and vocational expert had satisfied the criteria set forth by the Borman decision because the trial judge and vocational expert had at least considered the apportionment found by the evaluators. Therefore, the Borman concerns were supposedly satisfied.

There are two ways to view this opinion, and both are somewhat dangerous.

The first and more reasonable interpretation is that the vocational counselor has somehow found that absent the nonindustrial factors, the industrial injury is sufficient to produce a 100% permanent total disability award. Insofar as this opinion might be substantial evidence, it would be logical and arguably not violate Borman, which really only requires taking into account the medical evaluator’s opinion regarding apportionment.

Unfortunately, that is not what appears to have been done here. This leads to the second way to view this opinion, which is that the vocational evaluator simply pointed out that the applicant could not work due to his overall condition. Most of the time when this happens, defendants still get apportionment to nonindustrial factors because the issue is not the bad result, but rather what caused that result.

It does appear that the WCAB has allowed the vocational expert in this case to simply throw out the apportionment because of the level of applicant’s overall disability. If so, then this case has given dangerous new powers to the vocational experts, and we will have to see how many cases follow this example and whether “vocational apportionment” becomes one of the concepts that is established in workers’ compensation, or if the concept itself is an aberration.

In handling our cases, it still would seem to be best practice to attempt to shore up the doctor’s apportionment and possibly even explore the vocational expert’s opinion with respect to any deviation from that apportionment. It will always be worth attempting to establish whether the opinions expressed by the expert are substantial.

This is a panel decision and is not binding authority. I would treat it as an aberration for now, but recognize that this potentially scary new concept is on the horizon.

Gregory P. Fletcher is a partner at Bradford & Barthel’s Sacramento office. This entry from Bradford & Barthel's blog appears with permission.