Not too long ago, a WCAB en banc decision changed the game for vocational experts (Nunes). This case made it clear that experts must apply medical apportionment. A vocational rehabilitation expert could no longer ignore apportionment provided by a QME/AME as Labor code 4663 confirms only physicians are allowed to offer an opinion as to whether medical apportionment applies. This left Applicant attorney confused as a vocational rehabilitation reports had to meet certain standards and coincide with the medical reporting.

Now in Havanis v. California Department of Transportation,2024 Cal. Wrk. Comp. P.D. LEXIS 167,the WCAB provides direction on the use of vocational evidence to rebut the permanent disability rating. This case gives Applicant’s a four-step guide to use in order to establish a 100% PD without a deduction for medical apportionment. It appears the focus is the industrial work restrictions. The WCAB clarified the duties of the vocational rehabilitation expert and the AME/PQME.

“1) Applicant has been assigned a work restriction(s), which requires substantial medical evidence.

2) The work restriction(s) precludes applicant from rehabilitation into another career field, which requires vocational expert evidence.

3) The work restriction(s) precludes applicant from competing on the open labor market, which requires vocational expert evidence.

4) The cause of each work restriction is 100% industrial, which requires substantial medical evidence.”

The WCAB explained “… we are focused only on those restrictions that contribute to the vocational expert’s findings. An applicant can have multiple work restrictions, some of which are non-industrial. If the industrial work restrictions, standing alone, preclude applicant from rehabilitation and preclude applicant from competing on the open labor market, applicant has met their burden on causation of disability. If applicant’s preclusion from rehabilitation and work is caused or contributed by either non-industrial work restrictions or partially industrial work restrictions, applicant fails their burden on causation of disability.”