REVIEW OF VOCATIONAL EXPERT’S REPORT BY AMEs AND QMEs

February 2024

By Kenneth Kingdon, Esq.
Law Offices of Kenneth Kingdon

Gonzalez v. Team Infinity 2023 Cal. Wrk. Comp. P.D. LEXIS 205

Issue

1. Are AMEs and QMEs allowed or expected to review a vocational expert’s conclusion regarding whether an applicant is amenable to vocational rehabilitation?

Disposition

The WCAB stated, in ruling that the case should be remanded:

“It is appropriate that evaluating physicians consider the vocational evidence as part of their determination of permanent disability, including factors such as whether an injured worker is feasible for vocational rehabilitation (Ogilvie, supra). We note that neither AME was provided the reports from the parties’ vocational experts to review.” (emphasis supplied)

“As discussed herein, the reports from the parties’ vocational experts do not constitute substantial evidence and, in turn, cannot be the basis for determining applicant’s disability caused by the industrial injury. Also, Dr. Nagelberg and Dr. O’Neill did not review said reports. Based thereon, the record does not contain substantial evidence pertaining to whether applicant is amenable to vocational rehabilitation.” (emphasis supplied)

In other words, the record lacked substantial evidence on whether the applicant was amenable to VR, in part, because the medical evaluators had not reviewed the reports of the vocational experts.

Analysis

History

It seemed to be a settled issue that sole authority to determine eligibility for VR vested in the vocational expert, since they were licensed professionals with expertise in the labor market. (Harvey v. Baker Places 2020 Cal. Wrk. Comp. P.D. LEXIS 279, Santiago v. State of California 2019 Cal. Wrk. Comp. P.D. LEXIS 350, Bass v. State of California, Department of Corrections 2017 Cal. Wrk. Comp. P.D. LEXIS 213, Holstein v. Sonoma Developmental Center 2017 Cal. Wrk. Comp. P.D. LEXIS 135, Borela v. State of California Department of Motor Vehicles 2014 Cal. Wrk. Comp. P.D. LEXIS 217, Lotspike v. Travelers Insurance Co. 2013 Cal. Wrk. Comp. P.D. LEXIS 564, Alonzo v. Cingular 2017 Cal. Wrk. Comp. P.D. LEXIS 528, Viray v. Pacific Gas & Electric 2017 Cal. Wrk. Comp. P.D. LEXIS 400).

However, that changed beginning in 2020.

Bosrock

In 2020, in Bosrock v. Ben R. Wadsworth, Inc. 2020 Cal. Wrk. Comp. P.D. LEXIS 387, a case decided in favor of the defense, the WCAB stated in an unexpected decision that

“Where there is substantial vocational evidence relevant to the issue of applicant’s ability to return to the labor market and his amenability to participate in vocational rehabilitation, which the WCJ relied upon to determine that applicant has effectively rebutted the rating determined under the AMA Guides, the medical evaluator relied upon to determine the AMA Guides rating should be provided the opportunity to review that evidence to see how it impacts his own opinion. Upon review of the vocational evidence, Dr. Rosenberg may indicate whether he concurs in the vocational findings that applicant is precluded from returning to the open labor market and is not amenable to vocational rehabilitation. Such an evaluation would provide substantial medical evidence to inform the WCJ’s findings on the extent of applicant’s permanent disability.” (emphasis supplied)

Benavides

Similarly, in Benavides v. Wagner Ryan, AGS Tile and Stone 2022 Cal. Wrk. Comp. P.D. LEXIS 14, another decision favoring the defense, the WCAB elected to rely on the QME to reject the opinion of the VE and find the applicant was amenable to VR.

Gonzales

As discussed above, in Gonzales, the WCAB remanded the case for two reasons: The VE reports were not substantial evidence, and also the medical evaluators had not reviewed the VE reports.

Nunes

In the en banc Nunes II decision (Nunes v. State of CA, DMV (2023) 88 Cal. Comp. Cases 894), in addition to rejecting the concept of vocational apportionment, the WCAB held that

“We therefore find no merit in applicant’s contention that evaluating physicians are ill-equipped and unwilling to assess vocational evidence. To the contrary, we believe that vocational evidence is an important, and often integral, consideration in the preparation of medical-legal reporting, and that is fully within the purview of the evaluating physician to offer an opinion responsive to the vocational evidence either at the request of the parties, or of the physician’s own accord.”

The use of medical evaluators to address amenability to vocational rehabilitation in Nunes was opposed by applicant’s attorney.

Applied Materials

In a published decision, the Court of Appeals in Applied Materials v. WCAB (2021) 86 Cal. Comp. Cases 331, cited Merino v. WCAB (2001) 66 Cal. Comp. Cases 405, (writ denied), which held that while it is proper for a doctor to give an opinion on whether an injured worker can perform his or her usual and customary duties, opinions about “competing in the open labor market” are beyond the doctor’s expertise and must be left to a vocational rehabilitation specialist.

They also cited Morris v. WCAB (2014) 79 Cal. Comp. Cases 1348 (writ denied), in which the WCJ stated that it “is improper for a doctor to deem an applicant 100% permanently disabled based on the doctor’s opinion that the applicant is unable to compete on the open labor market.” By citing Morris, the Applied Materials Court rejected the use of Sec. 4662(b) to find an applicant 100% disabled “according to the fact.” In regard to the doctor opining on the applicant’s vocational rehabilitation status, the Court stated, “Dr. Sidle did not opine on Worker’s ability to participate in vocational rehabilitation, take advantage of training opportunities, or find work. While Dr. Sidle was able to opine on these matters from a medical or psychiatric standpoint, he was not a vocational expert, he was not qualified to opine on these points from a vocational perspective or opine that she was 100 percent disabled from working in the open labor market.” As Petitioners note, while Dr. Sidle stated that it was not possible for her “to meet the demands of an employer on a steady basis eight hours a day, five days a week, Dr. Sidle did not consider part-time work, work at home, other alternative work settings, retraining options, or her ability to participate in vocational rehabilitation.” (emphasis supplied)

The Court rejected the use of Sec. 4662(b) to find an applicant 100% PD, which was what the applicant was advocating. However, the Court went beyond that, apparently conflating amenability to VR (LeBoeuf v. WCAB (1983) 48 CCC 587) with being medically 100% PD (Sec. 4662(b)).

The two principles do overlap. Doctors traditionally found the applicant 100% PD using language such as “unable to compete in the labor market” or “totally and permanently disabled,” which was allowed under Sec. 4662(b). If the applicant was clearly 100% PD, such as with a brain injury or severe constant pain, the doctor’s conclusions were accepted. But, if the injury was not that severe, doctors sometimes acknowledged, when asked, that their determination of total disability was based on an understanding of the labor market, which only a vocational expert could address.

It might be argued that the principal issue in Applied Materials was Sec. 4662(b) and that the Court’s discussion of evaluators addressing vocational rehabilitation was dicta.

RATIONALE FOR MEDICAL EVALUATORS TO ADDRESS VOCATIONAL REHABILITATION

The WCAB in Nunes had what might be considered a questionable rationale for allowing the evaluating doctors to address VR.

They stated:

“Pursuant to Section 4663(c), evaluating physicians play an integral role in the determination of permanent disability. It is therefore appropriate and often necessary that evaluating physicians consider the vocational evidence as part of their determination of permanent disability, including factors such as whether applicant is feasible for vocational rehabilitation, and whether the reasons underlying applicant’s non-feasibility for vocational retraining arise solely out of the present industrial injury or are multifactorial. As is noted in Guzman, supra, it is the physician that must exercise their “skill, knowledge and experience as well as other considerations” in formulating an opinion on permanent disability. Thus, vocational evidence is often relevant and appropriately considered by the reporting physician in their evaluation of issues pertaining to permanent disability.” (emphasis supplied)

The WCAB seems to justify giving a medical evaluator authority to resolve VR disputes based on the doctor’s experience in determining apportionment and also based on using their skills in determining permanent disability, which is a questionable analysis.