Judges have thus far been somewhat split on whether vocational evidence is even admissible in injuries that occurred after Jan. 1, 2013, given the changes in the law reflected in Labor Code 4660.1.

James Cotter

The defense bar reasonably believes that there was legislative intent to curtail the use of diminished future earning capacity evidence in establishing disability, as indicated by the removal of the phrase “consideration being given to an employee’s diminished future earning capacity” in Labor Code 4660.1 for injuries that occur after Jan. 1, 2013, as well as the replacement of the range of DFEC modifiers with an across-the-board 1.4 adjustment factor for all varieties of injury.  

Recently, a panel of three commissioners at the Workers' Compensation Appeals Board in the case of Hanus v. URS/AECOM Corporation (2018), upheld a judge's award of permanent and total disability in a case where the defendant had argued that the injured worker could not rebut the 2013 Permanent Disability Rating Schedule (PDRS), and that a previous case disallowed a rebuttal of the PDRS by a showing that a different DFEC modifier was justified by the facts. 

The applicant, who was seriously injured, had submitted both medical reports showing extreme impairment, and a vocational expert report describing a complete inability to compete in the open labor market.

The commissioners, in upholding the award after trial, were quick to point out that there is no 2013 PDRS and that the 2005 PDRS, which remains operative, provides only prima facie evidence of permanent disability and can still be rebutted. 

The judge at the trial level had concluded that there was no change to the law that precluded a finding of total disability “in accordance with the fact,” under Labor Code 4662.

The commissioners agreed and found that the 100% finding was based on an individual assessment of applicant’s limitations that was supported by both medical and vocational evidence.

Unfortunately, this issue will likely remain unsettled and continuously litigated until a higher court opines.

Jim Cotter is an associate partner in Mullen & Filippi's Oakland office.