LexisNexis Calif. Workers' Comp eNewsletter: Use of Vocational Experts

Vol 2, Issue 34

Find Solutions & Strategies August 22, 2011

Vocational Expert Evaluation

Is the defendant entitled to use its own expert to rebut the employee's LeBoeuf argument?

In This Issue

* VOCATIONAL EXPERT

* LARSON'S eBOOK

* RECENT PANEL DECISION: Lap Band

* BLOG ROUND UP: Fraud, CCC's, AWW

* JOB POSTING: Defense attorney

* NEWS HEADLINES: UR regs a priority

* CITEABILITY OF PANEL DECISIONS

* PANEL DECISIONS REPORTER

* eNEWSLETTER ARCHIVES

A Note From the Editor

Dear WC Professionals:

If you haven't subscibed yet to our free weekly eNewsletter, contact me with your name and email address, and I'll add you to the distribution list.

Sincerely,

Robin E. Kobayashi, J.D.

LexisNexis Editorial & Content Development

robin.e.kobayashi@lexisnexis.com

Workers' Comp Centennial

Arthur Larson

This year, in celebration of the Workers' Compensation Centennial, we are reminded of Dr. Arthur Larson's words of wisdom, as stated in his memoirs A Twentieth-Century Life:

"Workers' compensation ... has displayed a reassuring ability to survive in spite of never-ending controversies and clashes of interests. There is no reason why it should not continue to do so, provided that the principal players never lose sight of the system's central purpose: to provide suitable income for all industrially-injured workers reliably and promptly throughout their lives."

vocational expert

Is a Defendant Entitled to Have the Applicant Evaluated by Its Vocational Expert?

On July 29, 2011, the First District Court of Appeal issued Ogilvie v. WCAB 2011 Cal. App. LEXIS 988 [76 Cal. Comp. Cases 624], its appellate review of Ogilvie II (Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127). The appellate decision in Ogilvie essentially agreed with the WCAB to the extent that it, too, believed that the DFEC adjustment factor, as well the scheduled rating more generally, could be rebutted. However, it disapproved of the methodology advanced by the commissioners in Ogilvie II. Interestingly, one of the methods of rebutting the scheduled rating approved by the Court of Appeal is to show that "the employee will have a greater loss of future earnings than reflected in a rating because, due to the industrial injury, the employee is not amenable to rehabilitation". Thus, the Court of Appeal appears to have "resurrected" LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48 Cal.Comp.Cases 587] as a viable manner of rebutting the scheduled rating.

The Court of Appeal's reliance on LeBoeuf is interesting from many perspectives. Much has obviously changed in workers' compensation since LeBoeuf was decided. Vocational Rehabilitation is no longer an available benefit in the workers' compensation system. The absence of a Vocational Rehabilitation Unit file, specifically, determinations made by the Vocational Rehabilitation Unit, would seem to emphasize the need to have a vocational rehabilitation expert evaluate the applicant and testify in those cases where applicant's limited vocational rehabilitation opportunities is placed in issue.

Should a defendant wish to have the employee evaluated by a vocational rehabilitation expert so as to ensure that it can meaningfully rebut the employee's LeBoeuf argument, the question that arises is, under what authority is a defendant in a workers' compensation case entitled to have the applicant evaluated by its vocational expert?

Recently, in Maria Andrade, Applicant v. Diamond Contract Services, Defendant, 2011 Cal. Wrk. Comp. P.D. LEXIS 99, the Appeals Board ... read more.

Lexis.com subscribers can link to the cases, statutes, etc. cited in this article.

ogilvie court cites larson's

ebook slant Dr. Arthur Larson's treatise on workers' compensation is still frequently cited by courts, including most recently by the 1st DCA in Ogilvie v. Workers' Comp Appeals Bd.

We are pleased to announce the Larson's Workers' Compensation, Desk Edition eBook from LexisNexis�. It's portable, dependable, and simple to use on your computer with e-reader software like Adobe� Digital Edition, or on dedicated e-reader devices, such as Apple� iPad�, Sony� Reader, and Amazon� Kindle™. Attorneys, courts, employers, insurance professionals, government entities, policymakers, and others involved with workers' compensation issues depend on Larson's authoritative and incisive coverage on the exclusive remedy defense, employment status, medical and death benefits, psychological injuries, third-party claims, and more. With Larson's you'll also get a bird's eye view of the various jurisdictions and their interpretations of complex workers' compensation issues. Now, this same trusted content is ready whenever you need it and wherever you are, 24/7. Workers' Comp Centennial Discount: Save 20%.

SNEAK PREVIEW: RECENT PANEL DECISION

NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.

Medical Treatment; Reasonableness and Necessity; Lap Band Surgery. WCAB affirmed WCJ's finding that applicant/deduction management specialist who claimed industrial injuries to her neck, back, shoulder, lower and upper extremities, and psyche was not entitled to medical treatment in form of Lap Band (bariatric) surgery, when, although AME explained that Lap Band surgery and weight loss would be beneficial to applicant, WCAB found that AME's opinion, which was the sole evidence on medical necessity of Lap Band surgery, was insufficient to prove that Lap Band surgery was "reasonably required to cure or relieve the effects" of applicant's industrial injury pursuant to standard in Labor Code � 4600(a). See Navarro panel decision.

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

blogs at the lexisnexis workers' comp law community

Fraud Sign

Workers' Comp Fraud Blotter - Chiropractor Charged With Billing For Non-Existent Treatment While Patients Were Actually In Jail, by LexisNexis Workers' Compensation Law Community Staff. Read it.

Cal. Comp. Cases August Advanced Postings (8/18/2011). Here's the third batch of advanced postings for the August 2011 issue. Lexis.com subscribers can link to the complete headnotes and summaries. Read it.

Injured Workers Beware: Hidden Danger in Concurrent Employment in States That Refuse to Combine Concurrent Wages in Computing Average Weekly Wage, by Thomas A. Robinson. Read it.

job posting

WC Defense Associate. Brea office of Goldman, Magdalin & Krikes, LLP seeks attorney with minimum 5 years workers' comp defense experience, competitive salary & benefits. Submit in Word format cover letter, resume, salary history/requirements to dcaldarelli@gmklaw.com.

NEWS HEADLINES

Workers' Comp Executive:

FLASH: DWC's Moran Says Updating UR Regulations a Top Priority.

Other News:

CA: NASI Report: Calif Workers Comp Benefits Decline.

CA: DWC Posts Adjustments to OMFS Outpatient Hospital, Ambulatory Surgical Center Services.

CA: CASA Applauds DWC Adjustments to OMFS Outpatient Hospital, Ambulatory Surgical Center Services.

CA: DWC Schedules JET File Transmission Code Testing in Sept, Nov.

CA: CHSWC Releases the "EAMS Needs Assessment" Report.

CA: Employers Group Says Bill to Expand Workers Comp Benefits Would Cost Employers $210M.

NASI Report: Job Losses Cause Workers Comp Coverage and Costs to Fall.

NASI: Workers Compensation: Benefits, Coverage, and Costs 2009.

NFL Players Describe Effects of Brain Trauma.

A.M. Best Revises Outlook to Negative for SeaBright Insurance Company.

Fraud Dog Reality Series to Educate Public About Fraud, Coming Soon to TV Networks.

Johnson & Johnson Ortho Unit Hires Broadspire Services to Handle Claims for Hip Recall.

citeability of panel decisions

Practitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].

Lexis.com subscribers can link to the cases cited above.

vocational expert, continued...

reversed an order wherein the workers' compensation administrative law judge (WCJ) denied defendant's petition to require applicant to present herself for evaluation by a vocational expert. Defendant contended that it would be deprived due process of law if it was unable to obtain such an evaluation and that it was entitled to obtain rebuttal evidence pursuant to Labor Code section 5704.

In addressing defendant's arguments, the panel of commissioners noted:

"With regard to due process, we are not convinced that the WCJ's ruling rises to the level of denial of due process of law. Defendant has obtained reports from Wilkinson. The case has not yet gone to trial, so there has been no ruling on the substantiality of those reports... Nor do we believe that section 5704 is relevant to this issue. Section 5704 provides: "Transcripts of all testimony taken without notice and copies of all reports and other matters added to the record, otherwise than during the course of an open hearing, shall be served upon the parties to the proceeding, and an opportunity shall be given to produce evidence in explanation or rebuttal thereof before decision is rendered." Here, there has been no trial. A fortiori, nothing has been added to the record outside of an open hearing. Therefore, section 5704 has no bearing on the in issue before us... However, we believe that discovery is intended to be a two-way street and that mutual discovery should be allowed as a matter of fundamental fairness (see Edwards v. Superior Court (1976) 6 Cal.3d 905 and Schwartzman v. Superior Court (1964) 231 Cal.App.2d 195)... Furthermore, the Labor Code permits a defendant to require an employee to submit to a medical evaluation by a practicing physician (section 4050) and also permits the Appeals Board to direct an unrepresented employee to be examined by a qualified medical evaluator (section 5703.5). Even though these statutes do not expressly authorize evaluation by a vocational expert, they do not expressly prohibit it... For these reasons, we believe that fundamental fairness in this case requires that the applicant submit to evaluation by defendant's vocational expert. Therefore, we rescind the WCJ's Order and direct applicant to present herself for evaluation by Keith Wilkinson, defendant's vocational expert".

In conclusion, a superficial analysis by an expert who does not have the ability to meet with the applicant, who does not carefully address the applicant's educational background, who does not carefully consider applicant's transferrable skills, and does not carefully consider those vocational issues particular to the applicant, will not be substantial evidence and will not be relied upon by the WCAB. As set forth in Andrade, both parties appear to have the fundamental right to have the applicant interviewed and evaluated by its vocational expert.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis� or its affiliates or by the LexisNexis� editorial consultants who review panel decisions.

Reminder: Practitioners should check the subsequent history of a panel decision before citing to it.

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Designed specifically for Lexis.com subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

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