Vocational Experts after January 1, 2013: A Case Law Update Including Fitzpatrick

SURE LOG, ESQ.

El Segundo, California

Ever since the Legislature’s enactment of SB 863 effective January 1, 2013, one of the most important unsettled issues is whether vocational evidence may be used to rebut a scheduled rating for injuries on or after that date. This is relevant because in the published decision of Ogilvie v. WCAB (2011) 197 Cal.App.4th 1262, the First District Court of Appeal held in part that an injured worker may dispute their scheduled rating on the grounds that it does not accurately reflect that worker’s true diminished earning capacity due to an industrial injury. Id. at 1276. Ogilvie noted that one of the ways to do this was with vocational evidence to show an injured worker was not amenable to rehabilitation (citing LeBoeuf v. WCAB (1983) 34 Cal.3d 234). Practitioners consequently retain vocational experts for injured employees to show the impact of injuries on their diminished future earning capacity.

The Legislature, however, made significant changes to permanent disability (PD) as part of SB 863. Although Labor Code section 4660, which applies to injuries before January 1, 2013, still requires consideration of an employee’s diminished future earning capacity in determining the percentages of PD, Labor Code section 4660.1, which applies to injuries on or after January 1, 2013, removes the language requiring consideration of an employee’s diminished future earning capacity. Now that section notes the PD should be adjusted with a 1.4 modifier, defendants argue that this change precludes the use of vocational experts for injuries on or after January 1, 2013, and injured workers argue that no legislative intent to change the law can be gleaned from the statutes.