Nunes I and II: A Revised Paradigm for the Use of Medical and Vocational Evidence to Determine PD and Apportionment

MARGUERITE SWEENEY, ESQ.

SAN FRANCISCO, CALIFORNIA

Last year, the Workers Compensation Appeals Board issued two contiguous en banc decisions. In Nunes I, the Appeals Board ruled that Labor Code section 4663 governs the standard for apportionment and requires evaluating physicians, not vocational experts, to make apportionment determinations. Accordingly, the concept of "vocational apportionment" is not legally cognizable. Vocational evidence may be used to address issues relevant to permanent disability and apportionment, and must address the apportionment described in the medical evidence. In Nunes II, the Board affirmed their holdings and gave additional explication. Both decisions provide comprehensive analyses and guidelines that are well-grounded in statutory and case law. They should be read thoughtfully by workers compensation practitioners.¹

This article focuses on two crucial takeaways: The requirement that both medical and vocational reporting constitute substantial evidence to be legally valid, and the proper uses of vocational evidence by physicians in deciding PD and apportionment.