The recent writ denied case, Target Corporation, PSI, administered by Sedgwick CMS, (Petitioner) v. WCAB, Fidel Estrada, (Respondents), 2016 Cal.Wrk.Comp.LEXIS 131, dealt with the issue of apportionment where the applicant was found to be permanently totally disabled per Labor Code section 4662(b).

The applicant sustained multiple orthopedic injuries as well as internal injuries by way of cumulative trauma. Following trial, the WCJ issued a decision finding the applicant 100 percent permanently totally disabled without apportionment “in accordance with the fact” under Labor Code section 4662(b). (Labor Code 4662(b) states that, “permanent total disability shall be determined in accordance with the fact.”)

The defendants filed a petition for reconsideration. Among the issues contested was whether the Workers’ Compensation Judge should have found apportionment pursuant to the medical legal evaluators who had found apportionment from a medical perspective.

The Workers’ Compensation Judge recommended that the defendants petition for reconsideration be denied. The Judge noted that his findings were based upon the fact that the applicant was unable to compete in the open labor market per the applicant’s vocational expert’s opinion.

The finding of permanent total disability in this case was based on the applicant’s vocational non-feasibility rather than the AMA Guides’ impairment rating; the apportionment analysis focused on the applicant’s vocational capabilities rather than the AMA Guides’ impairment found by the various doctors. The Judge further noted that when an applicant is unable to compete in the open labor market, an apportionment analysis is still required. However, when permanent disability is based upon a vocational analysis rather than medical impairment, the apportionment analysis should be a separate vocational one and should not rely exclusively on each medical cause of impairment.

It was reasoned that the AMA Guides expressly state that impairment percentages are not the same as work disability. The whole person impairment in the Guides estimates the impact on performance of activities of daily living- excluding work. The Judge cited an example provided by the AMA Guides where an individual who receives a 30% whole person impairment due to a heart condition is considered from a clinical standpoint to have a 30% reduction in general functioning as represented by a decrease in the ability to perform activities of daily living. However, for individuals who work in sedentary jobs, there may be no decline in their work ability even though their overall functioning is decreased by 30%. The example provides that a 30% impairment rating does not correspond to a 30% reduction in work capability.

The Judge further explained that the apportionment analysis must not be limited to what each medical doctor thought was causing the underlying impairments but rather the ultimate question of what is causing a total loss of earning capacity and inability to compete in the open labor market.

In this case, the vocational expert found that, while the applicant had some pre-existing medical impairment, the pre-existing impairments did not result in any prior work disability. As such, the vocational expert found that 100% of the applicant’s earning capacity loss was industrial in nature. The vocational expert did indicate that if the medical evaluators found that non-industrial medical problems would have produced impairments that would have terminated or shortened the applicant’s work life, absent industrial factors, then the expert would reconsider her apportionment opinions.

On reconsideration, the WCAB noted there was no substantial medical evidence supporting non-industrial apportionment and upheld the trial court’s decision. The defendants filed a petition for Writ of Review, which was denied.

In the case at hand, there was no significant discussion as to what the vocational expert based her opinion on in finding the applicant to have a 100% loss of earning capacity. It is unclear whether the defendants had the doctors address the applicant’s pre-existing medical conditions and whether it would have ultimately terminated or shortened his work life. It would be interesting to see if a vocational expert would accept a medical opinion that an applicant’s non-industrial medical conditions would have shortened the applicant’s work life by a certain time or percentage. If a vocational expert does not find that an applicant’s non-industrial injuries or conditions affects his ability to be rehabilitated, would they accept a medical opinion which indicates that the non-industrial medical condition would have shortened his work life?

What is clear is that one should be prepared to address apportionment issues from a vocational standpoint rather than a strict medical standpoint if you are faced with the situation of a vocational expert finding the applicant to have a 100% loss of earning capacity. It is important to understand that there is a difference between a medical apportionment analysis and a vocational analysis–at least according to the court. Be prepared to work with your vocational experts and provide them with as much evidence as possible to support apportionment from not only a medical perspective, but a vocational perspective as well. Also be prepared to attack a vocational expert’s opinion on apportionment, or lack of it, if it is not supported by substantial evidence and prepare a record for appeal as appropriate.