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Grinberg: WCAB Majority Adopts App Voc. Rehab Opinion

  • State: California
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Today’s post is on the split panel decision in Hernandez v. Ventura Post Acute.

Gregory Grinberg

Gregory Grinberg

The workers' compensation judge relied on the panel qualified medical evaluator's opinion to award 45% permanent disability after applicant sustained a fall.  However, applicant sought reconsideration, demanding the the Workers' Compensation Appeals Board instead find her permanently and totally disabled based on an Ogilvie rebuttal of the permanent disability rating schedule.

Applicant offered evidence from her vocational rehabilitation expert that she was not amenable to rehabilitation and totally precluded from the workforce. The WCAB majority granted applicant’s petition and substituted a new award for permanent total disability.

The majority was persuaded by the analysis offered by applicant’s vocational rehabilitation expert as to the work restrictions. The way those restrictions were interpreted, applicant argued, there was no feasible job available, not even a sedentary one. For example, the VR expert interpreted the QME’s prohibition on bending and stooping as precluding any job, even sedentary, that would require the occasional bending to reach a low filing cabinet or pick up a dropped item.

Even though the QME assigned apportionment, 67% non-industrial, the WCJ rejected that opinion at trial, so the VR expert’s opinion was not challenged on apportionment grounds, either.

The dissenting opinion pointed out that a preclusion from bending, stooping or twisting referred to precluding any job that required these activities, as opposed to the occasional and incidental movements along those lines.

Just imagine how much whiplash this case must have caused, to go from a PQME report that rated 15% PD ($14,645) after apportionment on its face to having the apportionment rejected at trial and facing an award for 45% PD ($68,440) to having the WCAB issue a permanent total disability award.

I have no inside knowledge about this case, and it’s entirely possible that the following was explored, but generally speaking, there are a few things defendants can consider.  For starters, if the QME is offering apportionment of permanent disability, and applicant is seeking VR evidence, one can ask the QME if the specific work restrictions, rather than just the permanent disability, are caused in part by nonindustrial or prior-industrial causes.

Furthermore, if defendants feel that the restrictions offered by the QME are being exaggerated or misinterpreted by the VR experts, a supplemental report can be sought from the QME to comment on the VR report and ask if the interpretations of the QME’s restrictions are correct or if they need to be rephrased. 

Neither of these options were discussed in the WCAB’s majority opinion, nor in the dissent, so perhaps they were attempted and came to naught. But, in any case, this opinion should make us defendants mindful of how quickly a case can decay from a 15% PD rating to a permanent and total disability award.

Gregory Grinberg is managing partner of the Tobin Lucks office in Burlingame and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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