Vocational Apportionment is Impermissible
3Applicant’s attorneys commonly utilize vocational experts as evidence to rebut a scheduled rating by establishing that the injured worker was not amendable to rehabilitation. (Ogilvie v. WCAB (2011) 76 CCC 624.) It becomes quite difficult to rebut the findings without spending unnecessary litigation costs on discovery including a defense vocational rehabilitation expert. Thus far there hasn’t been very much direction on the standards and parameters the vocational rehab experts.
It was not uncommon for a vocational rehabilitation expert to find that an injured worker is 100% disabled throwing out the medical evidence provided by the PQME including apportionment. The en banc decision Nunes v. State of Calif, DMV (2023) 88 Cal. Comp. Cases 741 completely rejects vocational apportionment. The court in Nunes found vocational experts have no business applying “vocational apportionment” when there is medical apportionment provided by the medical evaluator. Of course, the medical apportionment must be substantial medical evidence.
The court highlighted that Labor Code section 4663 requires a reporting physician to address impairment as to the injured body parts and to address apportionment of the causes of permanent disability, not vocational experts. Labor Code section 4663 does not authorize an expert witness to offer a superseding “vocational apportionment” independent of that identified by the reporting physicians as the Labor Code and case law do not provide a basis for ‘vocational apportionment’.
The result is that vocational experts no longer may reject a reporting physician’s apportionment to nonindustrial factors simply by finding no work restrictions or wage loss prior to the current industrial injury. Vocational experts must consider apportionment under the same legal standards as physicians and the Labor Code allows apportionment to pre-existing nonindustrial factors even if they were not disabling before the industrial injury occurred.