Can a Vocational Expert Find an Applicant to be PTD Despite Contrary Evidence From a Medical Legal Evaluator?
An interesting decision was issued on October 1, 2019. In Gutschlag v. Los Angeles Department of Water and Power, the court ultimately upheld a 100% permanent disability finding of a vocational rehabilitation expert despite having non-industrial apportionment applied by medical-legal evaluators.
Applicant suffered a cumulative trauma injury to his shoulders, knees, neck, back, psych, gastrointestinal system, urological system, and sleep over a period of August 1999 through November 18, 2004. Applicant went to several different medical-legal evaluators in different specialties. Ultimately, they did find industrial causation, but also applied apportionment to non-industrial causes. I will note that the percentage of apportionment for each body part provided by the medical-legal evaluators were all predominantly industrially related. Furthermore, each evaluator did provide work restrictions for applicant.
Applicant was ultimately evaluated by a vocational rehabilitation expert. The vocational rehabilitation expert opined that applicant was not a candidate for vocational rehabilitation. The expert noted that the vocational apportionment did not necessarily follow medical apportionment. He noted that the fact applicant’s impairments were primarily industrial in nature, is the primary reason which makes him unable to return to his job or hold any occupation in the labor market. He ultimately found that applicant was 100% permanently and totally disabled on an industrial basis.
Defense obtained an “employability assessment” from a vocational counselor, who ultimately opined that applicant was able to return to the labor market and listed several sedentary occupations. The defense vocational counselor also noted that applicant lacked an interest in returning to the work force and that his lack of motivation would make job placement unsuccessful. Ultimately, the defense vocational counselor did not evaluate the applicant in-person, conduct any vocational testing, and did not determine whether any of the sedentary occupations were available.
The court ultimately held that applicant was found to be permanently and totally disabled as a consequence of his industrial injuries and relied upon the opinions of the applicant’s vocational rehabilitation expert. The finding was issued despite the absence of medical evidence that found applicant’s restrictions precluded him from returning to some form of work.
Unfortunately, the answer is yes. I cannot say as to whether or not the outcome would have been different if the defense ensured that their expert took an in-person evaluation, conducted vocational testing and certified whether or not the sedentary occupations were available. It certainly would have made their arguments stronger; however, it does appear that the Judge’s decisions were primarily based upon applicant’s vocational rehabilitation expert’s opinions of applicant’s lack of amenability to vocational rehabilitation.
Gutschlag v. Los Angeles Department of Water & Power
(2019 Cal. Wrk. Comp. P.D. LEXIS 494)