WCAB Clarifies Roles of Physicians and Vocational Experts Under Ogilvie

It has long been recognized that an applicant's ability to participate in vocational retraining is a significant factor in assessing the worker's permanent disability. (LeBoeuf v. WCAB (1983) 48 CCC 587, 597.) In 2004, the Legislature enacted Senate Bill (SB) 899, and among the provisions was a requirement that permanent disability give consideration to an applicant's "diminished future earnings capacity," rather than the "ability to compete in the open labor market" (Labor Code § 4660(a).) The Labor Code was amended to require permanent disability to incorporate the "impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (LC 4660(b)). Prior to SB 899, permanent disability generally was rated based on work restrictions reported by doctors, but now, it is generally rated using impairments assigned by doctors under the AMA guides.

Nevertheless, in Ogilvie v. WCAB (2011) 76 CCC 624, the Court of Appeal found no meaningful difference between the terms “diminished future earning capacity” and “ability to compete in an open labor market." It held that applicants may challenge a scheduled rating by demonstrating that, due to industrial injury, they are not amenable to rehabilitation and therefore have suffered a greater loss of future earning capacity than reflected in the scheduled rating. Ogilvie has become synonymous with efforts to prove that an applicant is permanently totally disabled by using vocational experts. Although LC 4660.1 now applies to injuries occurring on or after Jan. 1, 2013, the WCAB continues to hold that vocational evidence can be used to rebut a scheduled rating for injuries on or after that date.

In 2023, the WCAB issued two en banc cases: Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 CCC 741 (Nunes I), and Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 CCC 894 (Nunes II). It held that apportionment determinations pursuant to LC 4663 must be made by physicians, and vocational experts may not offer a competing or alternate apportionment analysis. The WCAB added that an award of permanent total disability may issue "so long as the medical and vocational evidence establishes that the permanent and total disability arises solely out of industrial conditions or factors, that is, exclusive of nonindustrial or prior industrial conditions or factors" (Nunes II, 88 CCC 894, 900.)

Following Nunes I and Nunes II, there was some confusion among practitioners as to how vocational experts could be used to prove permanent total disability. Vocational experts are not medical experts, and it was unclear how they could apply valid medical apportionment to an analysis of an applicant's amenability for rehabilitation. Now, the WCAB has issued a series of cases clarifying the roles of physicians and medical experts, and the burden of proof when an applicant seeks to rebut a schedule rating under Ogilvie.

THE WCAB'S DECISIONS

In Havanis v. California Department of Transportation, 2024 Cal. Wrk. Comp. P.D. LEXIS 167, the WCAB explained:

When applicant is seeking to rebut the PDRS using Ogilvie, disability is no longer rated as an impairment under the AMA Guides. Instead, the impairment is now the work restrictions assigned to applicant from the industrial injury. The disability is the effect of those work restrictions on applicant's ability to rehabilitate and compete in the open labor market. Accordingly, medical apportionment, when analyzed under an Ogilvie rebuttal, must focus on the cause of the work restrictions. As applicant is seeking an award of 100% disability, the cause of the work restrictions contributing to applicant's inability to work must be 100% industrial, without apportionment.

The WCAB then explained that when applicants seek to rebut the PDRS and prove permanent total disability, they must prove that:

1. They have been assigned a work restriction(s), which requires substantial medical evidence.
2. The work restriction(s) precludes them from rehabilitation into another career field, which requires vocational expert evidence.
3. The work restriction(s) preclude them from competing in the open labor market, which requires vocational expert evidence.
4. The cause of the work restriction(s) is 100 percent industrial, which requires substantial medical evidence.

Havanis explained that an applicant could have multiple work restrictions, some of which are nonindustrial. But only if the industrial work restrictions, standing alone, preclude the applicant from rehabilitation and from competing in the open labor market, has he or she met the burden on causation of disability.

This analysis has been adopted in other cases. In Fiore v. Los Angeles Community College District, 2024 Cal. Wrk. Comp. P.D. LEXIS 297, the WCAB repeated that four-step analysis, and added:

The parties must provide the vocational expert with applicant's present work restrictions. To the extent that there is disagreement between the primary treater and the QME as to work restrictions, the parties, or ultimately the WCJ, must determine whose opinion on work restrictions constitutes substantial medical evidence so that the vocational expert can properly evaluate applicant's vocational feasibility. In the alternative, and particularly in cases where there is disagreement as to applicant's functional capacity, the parties may consider obtaining a functional capacity evaluation.

If different doctors assign different work restrictions, the vocational expert cannot take it upon themselves to determine whose restrictions to follow. They may offer alternative opinions dependent upon whose medical opinion is found most accurate. For the same reasons they cannot provide expert medical testimony, a vocational expert cannot take upon themselves the role of trier of fact.

In addition, in Cano v. Ecology Control Industries, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 314, the WCAB confirmed that this analysis applied. It agreed that although work restrictions require medical evidence, it added:

If the vocational expert has cause to disagree with or otherwise expand upon the work restrictions assigned, the parties must return to the medical experts to clarify applicant's ability to return to work. If the evaluators have failed to detail work restrictions to the parties' satisfaction, the parties should conduct appropriate discovery to obtain accurate and detailed work restrictions. For example, the parties may wish to consider obtaining a functional capacity evaluation.

ANALYSIS OF THE DECISIONS

As part of SB 899, SB 4660(d) was added to state, "The schedule shall promote consistency, uniformity, and objectivity." Although Ogilvie is an accepted method for rebuttal of a scheduled rating, the Court of Appeal previously explained, "While Ogilvie found the 2004 amendments did not overthrow certain long-held approaches to calculating earning capacity, it clearly did not intend those approaches to be construed so broadly as to return us to the ad hoc decisionmaking that prevailed prior to 2004." (Contra Costa County v. WCAB (Dahl) (2015) 80 CCC 1119, 1131.)

The WCAB's recent decisions bring us much closer to the standards that prevailed prior to 2004 than at any time since the SB 899. The WCAB explained that under Ogilvie, the focus is on an applicant's work restrictions and their effect on the worker's ability to rehabilitate and compete in the open labor market. That's like the system prior to 2004, when an applicant's permanent disability was largely determined by work restrictions. The difference, perhaps, is that Ogilvie may not be invoked when the inability to rehabilitate results in less than a 100 percent permanent disability. Nevertheless, the WCAB has provided applicants with a roadmap on how they can meet their burden of proving permanent total disability.

The WCAB seemingly requires doctors to perform a separate causation and apportionment analysis for an applicant's work restrictions. Previously, the WCAB explained that the cause of an injury is not necessarily the same as the cause of permanent disability for the purposes of apportionment under LC 4663. (Escobedo v. Marshalls (2005) 70 CCC 604, 611 (appeals board en banc).) Because the cause of an applicant's work restrictions can be different from the cause of his or her impairments under the AMA guides, the WCAB may require doctors to separately address causation of each, or at the very least explain why they are not different.

Moreover, Cano gives vocational experts an expanded role in determining an applicant's work restrictions. Although all the cases agree that an applicant's work restrictions, and causation of them, is a medical issue, Cano states that if a vocational expert disagrees with the assigned restriction, "the parties must return to the medical experts to clarify applicant's ability to return to work." That probably will increase discovery costs, as vocational experts and medical doctors will be required to issue additional reports.

Although none of these panel decisions is binding, they each repeated the same four-step analysis for applicants seeking to rebut a scheduled rating and prove permanent total disability. So, it's likely that this analysis will be applied by the WCAB unless and until an appellate court overturns it.

In each of the three cases, the WCAB believed that because it only recently clarified the roles of medical and vocational evaluators under Ogilvie, the cases were returned to the trial level to further develop the record. Additional cases on reconsideration with the WCAB probably also will be returned to comply with the analysis. But applicants who have not yet gone to trial probably will need to obtain updated medical and vocational opinions. Otherwise, the WCAB could simply find that they failed to meet their burden to rebut the scheduled rating. For further discussion of this topic, see "Sullivan on Comp" Section 10.19 Rebutting Schedule Under Ogilvie.