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By Colleen S. Casey
Copyright © 2012. All rights reserved. Reprinted with permission.
The decision in Ogilvie v. WCAB (Ogilvie III) (2011) 76 CCC 624 created an increasing demand for the expertise of vocational rehabilitation (VR) experts. Parties continually struggle with how to best present VR evidence.
Should they request a written report?
Should they take the expert’s deposition?
Or should they rely solely on the expert’s live testimony on the day of trial?
It is not uncommon for a party to identify only the name of the expert (and not the expert’s report) at the mandatory settlement conference (MSC). Although the work product privilege is enforceable in WCAB proceedings (See CCP §2018.010-2018.080 and Stephens v. WCAB (1999) 64 CCC 287), this tactic may backfire given the confines of LC §5502(e)(3) and 8 CCR §10601.
WCAB Rule §10601 provides: “Where documents… are to be offered into evidence, copies shall be served on all adverse parties no later than the mandatory settlement conference, unless a satisfactory showing is made that the documents were not available for service by that time.” (Emphasis added.)
To understand the application of this particular rule, and its interaction with LC §5502(e)(3), it might help to flash back a few years and examine the Costa and Ridgeway cases set forth below.
In 2006 and 2007, the WCAB issued the following en banc decisions on the use of VR experts at trial: Costa v. Hardy Diagnostic (Costa I), (2006) 71 CCC 1797; and Costa v. Hardy Diagnostic (Costa II), (2007) 72 CCC 1492.
In Costa (Costa I), supra, applicant was barred from submitting the report of his VR expert into evidence. Although the witness was disclosed at the mandatory settlement conference (MSC), her report was not served on opposing counsel until the day of trial, in violation of 8 CCR §10601.
In Grupe Company v. WCAB (Ridgeway) (2005) 70 CCC 1232 (3rd DCA), the applicant listed the VR expert as a witness on the MSC statement, but failed to identify the VR expert’s report. The 3rd DCA held that the VR expert’s report was not admissible, but the VR expert was allowed to testify at trial.
The 3rd DCA in Ridgeway issued the following warning: “Faced with a party's ‘sandbagging’ an opposing party by failing to develop expert testimony prior to the settlement conference, a WCJ may allow the deposition of the expert after the mandatory settlement conference or even exclude the witness's testimony as antithetical to the aim of fruitful settlement discussions.” (Emphasis added.)
The two cases are easily reconciled. A VR expert’s report is not mandatory, as is a physician’s report per 8 CCR §10606. (Costa, supra) However, if a party wants to admit a VR expert’s report into evidence at trial, then the party needs to disclose that report at the MSC. In the interests of avoiding a trial by ambush, the 3rd DCA did seem to also express a preference for the preparation of a VR expert’s report and disclosure of that report at the MSC. (Ridgeway, supra)
In addition to reviewing Evidence Code §800 et seq., for the procedure on presenting expert witness testimony at trial, parties are also encouraged to keep in mind the following additional considerations when securing evidence from their VR expert.
General Tips Regarding VR Experts:
1. A VR expert’s written report (in addition to or in lieu of live testimony) is usually helpful to the trier of fact.
2. The VR expert’s report, as well as the medical opinion underlying VR report, must BOTH constitute substantial evidence. (See Escobedo v. Marshall, (2005) 70 CCC 604 (en banc) & E.L. Yeager Constr’n v. WCAB (Gatten), (2006), 71 CCC 1687.)
3. If one of the issues is medication use as labor disabling, the VR expert’s opinion must be based on substantial medical evidence, and not solely on the self-reporting of the injured worker. (See Begay v. Hooper Homes, Inc., 2010 Cal. Wrk. Comp. P.D. LEXIS 221.)
4. If rebuttal of the permanent disability rating is an issue, the VR expert must clarify which rebuttal method is being analyzed.
5. If the issue is rebuttal of the strict AMA Guides rating, the report should consider LC §4660(a) and include an analysis of all four components of permanent disability, i.e. “nature of the injury, age of injured worker, occupation and employee’s diminished future earning capacity.”
6. If the VR expert is reporting in an Ogilvie III case, the expert must avoid factoring in “impermissible” non-industrial factors which the 1st DCA defined as follows:
Conclusion: In footnote 10 of Blackledge v. Bank of America, (2010) 75 CCC 613, the WCAB emphasized that the parties must educate physicians as to the controlling legal principles in any given case. The same would also be true of the parties’ responsibility towards the VR experts. Careful consideration should be given to the type and form of evidence needed from the VR expert to best assist the trier of fact in reaching a favorable determination at trial.
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