By: Jason Redula
INTRODUCTION
The sky is not falling.
Many attorneys for the insurance companies will smugly claim that vocational experts are irrelevant now in the Workers' Comp arena because of the CA Court of Appeals Dahl decision. But we believe that the holding is much narrower than that; the Court merely found that this particular Applicant did not meet her evidentiary burden. I.e. she was not able to prove that her neck/shoulder work injury rendered incapable of being vocationally rehabilitated.
BACKGROUND
Ms. Doreen Dahl sustained a cumulative trauma injury ending in March 2005. She suffered injury AOE/COE to her neck and right shoulder. AME Mechel Henry found that Ms. Dahl suffered permanent disability that resulted in a 59% permanent disability rating after modifying for age and occupation.
Dahl's attorney sought to rebut the standard 59% PD rating by obtaining evidence utilizing Mr. Jeffrey Malmuth, vocational rehab expert. The County utilized their own expert, Ira Cohen.
The matter went to trial. The WCJ determined that Dahl's injury caused a 59% PD. The WCJ focused on its opinion that applicant failed to rebut her diminished future earning capacity (DFEC) because she could not show her injury caused a total loss of future earning capacity or 100% PD.
Applicant filed a Petition for Reconsideration. The WCAB rejected the WCJ's interpretation of Ogilvie and held that Ms. Dahl could rebut the scheduled rating by showing the injury impaired her "amenability to rehabilitation" even where there was less than 100% PD. The matter was sent back down with instructions to the WCJ to develop the record decide whether Applicant can prove a higher PD than the standard rating of 59%.
Back down to the trial level, additional testimony was given by the two vocational experts. This time, the WCJ found that Dahl suffered a 79% PD.
This time, the County reconned. The WCAB affirmed. The County then Petitioned for Write of Review, which the CA Court of Appeals granted.
COURT OF APPEALS
The Court of Appeals, First Appellate District, Division Two reversed the WCAB's decision and annulled the award. The following is the basis of their opinion.
Ms. Dahl sought to rebut the standard PDRS 59% rating by utilizing the 2nd Ogilvie method called the "LeBoeuf method." Under this method, the employee has the burden to prove that:
She has a greater loss of future earnings than is reflected in the ratings because
due to the industrial injury,
the employee is not amenable to rehabiliation.
The Court found that Ms. Dahl included no evidence that her work injury rendered her incapable of rehabilitation. Instead, the vocational evidence focused on Ms. Dahl's loss of earning capacity. Mr. Malmuth opined that Dahl "cannot compete successfullly with uninjured job applicants, given the entire constellation of factors, despite having some earning capacity." Mr. Malmuth then opined that a higher PD rating based on DFEC was more accurate than the standard 59% PD rating.
The Court specifically stated "Dahl's attempt to rebut her disability rating bears little resmblance to any of the methods described in Ogilvie, including the rebuttal method derived from LeBoeuf. Dahl did not explain how her injury prevented her from participating in vocational rehabilitation. In fact, Dahl's own expert conceded she was a good rehabiliation candidate."
So, it is this authors opinion that this Dahl decision did not introduce anything new; the Court merely said "this is one of the ways to rebut the Schedule, and applicant was not able to meet her burden of proof." We did get some direction by the Court on the way we CAN rebut the schedule using the Leboeuf method as follows:
Determine whether a work-related injury precludes the claimant from
taking advantage of the vocational rehabilitation
and participating in the labor force
This is an individualized approach
NOT a comparison to similarly situated individuals who might be subject limitations
The Court declined to discuss whether or not the Leboeuf approach can be used in less than 100% PD cases
The Court said they are "skeptical" than it can be used, but did not touch it
Author's note: we learned in an educational seminar this weekend that we need not invoke Dahl or Ogilvie or Leboeuf when proving up a 100% PD case. We need only to look at Labor Code 4662 and page 14 of the AMA Guides:
Labor Code 4662 states that "permanent total disability shall be determined in accordance with the fact."
The AMA Guides, 5th edition states "more complicated are the cases in which the physician is requested to make a broad judgment regarding an individual's ability to return to any job in his or her field. A decision of this scope usually requires input from medical and nonmedical experts, such as vocational specialists and the evaluation of both stable and changing factors, such as the person's education, skills, and motivation, the state of the job market, and local economic considerations."