Workers' Compensation

WCAB En Banc Rejects “Vocational Apportionment”

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By Tom Richard 

On June 22, 2023, the WCAB issued an en banc decision in Grace Nunes v. State Of California DMV/SCIF(ADJ8210063, ADJ8621818) overturning a Workers’ Comp trial judge’s award of 100% permanent total disability that was largely based on the opinion of the employee’s vocational rehabilitation expert. 

The WCAB rejected the award because the vocational expert proposed replacing the 40% medical apportionment found by the QME with his own “vocational apportionment” of 0%. 

The unanimous WCAB held that: 

  

  1. Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment. The Labor Code makes no statutory provision for “vocational apportionment.”  
  • Vocational evidence may be used to address issues relevant to the determination of permanent disability.
  • Vocational evidence must address apportionment and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment. 

The Board stated: “[A] vocational report is not substantial evidence if it relies upon facts that are not germane, marshaled in the service of an incorrect legal theory.” In this case, the VR expert found that because the preexisting factors were not actually labor disabling prior to the current industrial injury, the “vocational apportionment” was 0%, even though the QME found 40% medical apportionment. However, the WCAB found this opinion to be an incorrect legal theory that cannot be relied upon in making a PD award. Just because the employee was able to adequately perform their job and suffered no wage loss prior to the current industrial injury, is no valid basis for a WC Judge to ignore the QME’s medical apportionment.

WCAB en banc decisions are binding on all Workers’ Compensation judges in every district office, per WCAB rule 10325.


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