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California: How the Appeals Board En Banc Decision in Nunes Affects Attorneys and WCJs

June 26, 2023 (23 min read)

On June 22, 2023, the Appeals Board issued an en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal. Comp. Cases __, 2023 Cal. Wrk. Comp. LEXIS 30, in which the Appeals Board made it clear that there is no such thing as “vocational apportionment” when a party seeks to rebut a strict rating under the 2005 Permanent Disability Rating Schedule (PDRS) using a vocational expert. In this case, the trial judge found that the Applicant, while employed as a vehicle field representative on September 13, 2011, and on a continuous trauma basis for the period September 13, 2010 to September 13, 2011, suffered injuries to her cervical spine (C5-C6 fusion surgery), upper extremities, and left shoulder resulting in 100% permanent total disability. Defendant appealed, and the Appeals Board granted the petition for reconsideration. This case is significant because it defines what the Appeals Board requires and expects in order for a vocational expert’s conclusions to constitute substantial vocational evidence. There are numerous issues the Appeals Board addresses in 100% permanent and total disability cases involving both medical-legal conclusions and the scope and role of vocational experts in light of existing case law. There is something for everyone in this decision, and counsel is urged to read and re-read this decision whenever a vocational expert is expected to be used in a case.

This case was remanded by the en banc Appeals Board for development of the record and, regardless of the ultimate outcome of the case itself, counsel should read this decision and utilize the numerous takeaway factors both for the prosecution and defense of cases involving vocational expert opinions. Each takeaway is listed below, including the first three specific ones that the Appeals Board discusses in its opinion, along with some quotable quotes:

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.”

The Appeals Board states:

‘Apportionment is the process employed by the Board to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility.’ (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321, 72 Cal. Comp. Cases 565, quoting Ashley v. Workers’ Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326; 60 Cal. Comp. Cases 683.)

Section 4663(c) provides, in relevant part:

(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

Accordingly, section 4663(c) authorizes and requires the reporting physician to make an apportionment determination, and further prescribes the standards the physician must use. (Lab. Code, § 4663(c); Escobedo, supra, at pp. 607, 611-612.) Apportionment must account for “other factors both before and subsequent to the industrial injury,” and may include disability that formerly could not have been apportioned, including apportionment to pathology, asymptomatic prior conditions, and retroactive prophylactic work restrictions. (Ibid.) In addition, when a physician considers all appropriate factors of apportionment but nevertheless determines that it is not possible to approximate the percentages of each factor contributing to the employee’s overall permanent disability to a reasonable medical probability, the physician has made the apportionment determination required under section 4663(c).

Finally, the Appeals Board clearly mandates that there is no statutory authority for “vocational apportionment”:

Section 4663(c) does not provide, however, for collateral sources of expert opinion as to apportionment, and further does not authorize the application of any other standard of apportionment. Accordingly, “vocational apportionment” offered by a non-physician is not a statutorily authorized form of apportionment. In addition, apportionment determinations that deviate from the mandatory standards described in section 4663(c) are not a valid basis upon which to determine permanent disability.

2. Vocational evidence may be used to address issues relevant to the determination of permanent disability.

So what is the scope of vocational expert opinion in a workers’ compensation case? The Appeals Board reiterates existing law that permanent disability is determined by a physician’s conclusions of the WPI rating from the AMA Guides 5th Edition and application of the 2005 PDRS all in accordance with Labor Code Section 4660. But the rating should reflect an injured worker’s loss of future earning capacity that is caused by an industrial injury, citing Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 72 Cal. Comp. Cases 565, and Department of Corrections & Rehabilitation v. Workers’ Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 83 Cal. Comp. Cases 1680. The Appeals Board goes on to state:

However, the scheduled rating is not absolute. (Fitzpatrick, supra, at pp. 619-620.) A rating obtained pursuant to the PDRS may be rebutted by showing an applicant’s diminished future earning capacity is greater than that reflected in the PDRS. (Ogilvie v. Workers’ Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262 [76 Cal.Comp.Cases 624] (Ogilvie); Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal.App.4th 746 [80 Cal.Comp.Cases 1119] (Dahl).) In analyzing the issue of whether and how the PDRS could be rebutted, the Court of Appeal has observed:

Another way the cases have long recognized that a scheduled rating has been effectively rebutted is when the injury to the employee impairs his or her rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than reflected in the employee’s scheduled rating. This is the rule expressed in LeBoeuf v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 234 [193 Cal. Rptr. 547, 666 P.2d 989].[fn.7] In LeBoeuf, an injured worker sought to demonstrate that, due to the residual effects of his work-related injuries, he could not be retrained for suitable meaningful employment. (Id. at pp. 237-238.) Our Supreme Court concluded that it was error to preclude LeBoeuf from making such a showing, and held that “the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee's permanent disability rating.”

(Ogilvie, supra, at p. 1274.)

Thus, ‘an employee may challenge the presumptive scheduled percentage of permanent disability prescribed to an injury by showing a factual error in the calculation of a factor in the rating formula or application of the formula, the omission of medical complications aggravating the employee’s disability in preparation of the rating schedule, or by demonstrating that due to industrial injury the employee is not amenable to rehabilitation and therefore has suffered a greater loss of future earning capacity than reflected in the scheduled rating.”[fn.8] (Ogilvie, supra, at p. 1277.) The court in Ogilvie thus affirmed the continued relevance of vocational evidence with respect to the determination of permanent disability. (Applied Materials v. Workers’ Comp. Appeals. Bd. (Chadburn) (2021) 64 Cal.App.5th 1042 [86 Cal. Comp. Cases 331]; see also County of Sonoma/Health Services Dept. v. Workers’ Comp. Appeals Bd. (Helper) (2023) 88 Cal. Comp. Cases 309 [2023 Cal. Wrk. Comp. LEXIS 4] (writ den.).)

In addition to the applications for vocational evidence contemplated in Ogilvie, supra, vocational reporting may also be admitted as evidence and considered by the WCJ under other circumstances. (Lab. Code, §§ 5703(j), 5307.7; Cal. Code Regs., tit. 8, § 10685.)

The Appeals Board en banc decision also indicates that “since evaluating physicians play an integral role in the determination of permanent disability,” evaluating physicians should always review the reports and deposition testimony, if any, of vocational experts. In addition, physicians can conclude based solely on medical findings that an injured worker is permanently totally disabled on an industrial basis. The Appeals Board states:

It is therefore appropriate and often necessary that evaluating physicians consider the 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.[fn.9] (Guzman, supra, at p. 828.) Thus, vocational evidence is often relevant and appropriately considered by the reporting physician in their evaluation of issues pertaining to permanent disability. (See, e.g., Qualcomm, Inc. v. Workers’ Comp. Appeals Bd. (Brown) (2019) 84 Cal. Comp. Cases 531, 2019 Cal. Wrk. Comp. LEXIS 35 (writ den.) [WCJ appropriately relied on agreed medical evaluator opinion that injured employee was precluded from gainful employment and vocational rehabilitation].)

3. Vocational evidence must address medical apportionment, and may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment.

The Appeals Board decision cites a number of important and helpful case law that counsel for both the injured worker and the employer/claims administrator should become familiar with, involving the rebuttal of a permanent disability rating string:

The same considerations used to evaluate whether a medical expert’s opinion constitutes substantial evidence are equally applicable to vocational reporting. In order to constitute substantial evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as “how and why” any specific condition or factor is causing permanent disability. (Escobedo, supra, at p. 611; see also E.L. Yeager v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922 [71 Cal. Comp. Cases 1687].)

Vocational evidence may assist the parties and the court in evaluating the various factors precluding successful vocational rehabilitation. In Thomas v. Peter Kiewit Sons’, Inc. (March 23, 2021, ADJ9229556) 2021 Cal. Wrk. Comp. P.D. LEXIS 90 (writ den. sub nom. Kiewit Infrastructure West Co. v. Workers’ Comp. Appeals Bd. (2021) 86 Cal. Comp. Cases 711), the vocational expert identified the factors of apportionment that were purely industrial in nature, and based on the QME’s assessment of the synergistic effect of the combined impairments, determined that applicant had sustained a total loss of future earning capacity. In Bagobri v. AC Transit (October 8, 2019, ADJ2559682) 2019 Cal. Wrk. Comp. P.D. LEXIS 384], functional capacity evaluations and vocational expert reporting established that applicant was not feasible for vocational retraining due to his work restrictions, and expert evidence further established that those physical restrictions arose solely out of medical treatment for applicant’s industrial injury. Because the work restrictions placed on applicant following his industrial injury precluded him from gainful employment, applicant effectively lost all future earning capacity due solely to his industrial injury. (Id. at p. 35.)

Vocational evidence may also be used to parse permanent disability caused by multiple body parts or systems. In Lehman v. Walgreens (February 3, 2017, ADJ8811286) 2017 Cal. Wrk. Comp. P.D. LEXIS 66, vocational evidence was used to distinguish between multiple injured body parts to determine that applicant was permanently and totally disabled on a psychiatric basis alone, when applicant’s psychiatric disability was not subject to apportionment. Additionally, vocational evidence demonstrated that the combination of applicant’s un-apportioned psychiatric disability, combined with his post-apportionment orthopedic disability, yielded disability that was permanent and total, without apportionment. (Id. at pp. 25-26.) Conversely, vocational evidence may also assist the parties in evaluating the effect of multiple disabilities spread across multiple body parts and systems. In Cemex, Inv. v. Workers’ Comp. Appeals Bd. (Burdine) (2013) 78 Cal. Comp. Cases 780, 2013 Cal. Wrk. Comp. LEXIS 117 (writ den.), the WCJ relied on the vocational expert’s evaluation of applicant’s disability arising out of injury to the neck, back, upper extremities, left thumb, and psyche to gauge the impact of applicant’s industrial injuries on his employability in the open labor market, ultimately finding that the opinions of the Agreed Medical Evaluator (AME) and the vocational expert supported a finding of permanent and total disability.

The case law cited above by the Appeals Board are examples of when vocational expert opinion is credible, reliable, and persuasive evidence to rebut a strict rating string. In the latter part of the Appeals Board decision in Nunes, the Board discusses why there is no such concept as “vocational apportionment” that replaces otherwise valid medical apportionment, citing the Borman and Lindh cases:

While vocational evidence may be utilized to assess factors of permanent disability, including whether an injured employee is feasible for vocational retraining, in order to constitute substantial evidence, vocational reporting must consider valid medical apportionment. (Acme Steel v. Workers’ Comp. Appeals Bd. (Borman) (2013) 218 Cal. App. 4th 1137, 1142-1143, 78 Cal. Comp. Cases 751 (Borman); City of Petaluma v. Workers’ Comp. Appeals. Bd. (Lindh) (2018) 29 Cal. App .5th 1175, 83 Cal. Comp. Cases 1869 (Lindh).)

In Borman, applicant claimed a cumulative injury ending in 2003 resulting in bilateral hearing loss. Applicant sustained a prior hearing loss injury in 1993, resulting in an award of 22 percent permanent disability. The AME in 2004 determined that applicant’s total hearing loss was 60 percent attributable to “noise-induced hearing loss,” which included applicant’s prior injury in 1993, and 40 percent to “other factors.” (Id. at p. 1140.) The WCJ determined that applicant had sustained permanent and total disability based on vocational expert testimony that there were no jobs available to applicant in the labor market, and that applicant had not sustained a loss of earnings following the 1993 injury. Following the Appeals Board’s denial of reconsideration, the Court of Appeal reversed, observing that while “we do not take issue with the WCALJ’s conclusion that Borman could rebut the rating schedule’s DFEC by offering vocational expert testimony showing 100 percent loss of earning capacity … [t]he WCALJ erred … by failing to address the issue of apportionment.” (Id. at p. 1142.) Noting the “clear intent” of the Legislature in enacting Senate Bill No. 899 “to charge employers only with that percentage of permanent disability directly caused by the current industrial injury,” the Borman court determined that the evidence presented clear and unambiguous evidence of prior disability, and “[f]aced with this unrebutted substantial medical evidence from the AME, the WCAB should have parceled out the ‘causative sources—nonindustrial, prior industrial, current industrial—and decide[d] the amount directly caused by the current industrial source.’” (Id. at p. 1143.)

Consequently, factors of apportionment must be carefully considered, even in cases where an injured worker is permanently and totally disabled as a result of an inability to participate in vocational retraining. In addressing apportionment, the vocational expert must disclose familiarity with the concepts of apportionment and set forth in detail the basis for the opinion, and may not rely on facts that are not germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin v. Workmen’s Comp. Appeals Bd. (1971) 4 Cal.3d 162, 36 Cal. Comp. Cases 93; Place, supra, 3 Cal. 3d 372; Zemke v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal. 2d 794, 33 Cal. Comp. Cases 358.)

The apportionment analysis required under 4663(a) and Escobedo, supra, does not permit reliance on facts offered in support of a competing theory of apportionment. (Lindh, supra, at p. 1193 [suggestion that apportionment is required only where there is medical evidence the asymptomatic preexisting condition would invariably have become symptomatic, even without the workplace injury, reflects prior law]; Dahl, supra, at p. 758 [“The Ogilvie court did not sanction rebuttal of the statutory Schedule by a competing empirical methodology—no matter how superior the applicant and her expert claim it may be.”].)

Accordingly, a vocational report is not substantial evidence if it relies upon facts that are not germane, marshalled in the service of an incorrect legal theory. Examples of reliance on facts that are not germane often fall under the rubric of “vocational apportionment,” and include assertions that applicant’s disability is solely attributable to the current industrial injury because applicant had no prior work restrictions (Zmek v. State of California, Department of Corrections and Rehabilitation (December 13, 2019, ADJ8493350) [2019 Cal. Wrk. Comp. P.D. LEXIS 552]), or was able to adequately perform their job (Lindh, supra, at p. 1194), or suffered no wage loss prior to the current industrial injury (Borman, supra, at p. 1141).

The analysis described by Escobedo, Borman, and Lindh requires an evaluation of all factors of apportionment, so long as they are otherwise supported by substantial medical evidence, and irrespective of whether they were the result of pathology, asymptomatic prior conditions, or whether those factors manifested in diminished earnings, work restrictions, or an inability to perform job duties.

4. What is the role of a trial judge in evaluating evidence submitted to rebut a rating string?

The Appeals Board decision in Nunes serves as an imprimatur for a workers’ compensation judge’s evaluation of evidence when a rating string is being rebutted by a party using medical and/or vocational evidence. A trial judge must “weigh the totality of the evidence adduced, and to enter a corresponding findings, order, or award. (Lab. Code, § 5313).” The Appeals Board goes on to mandate trial judges to do the following:

We emphasize that the WCJ is vested with the full power, jurisdiction, and authority, to hear and determine all issues of fact and law presented, and it is within the sound discretion of the WCJ to accept or reject the testimony of an expert witness, so long as the WCJ does not act arbitrarily. (Bonner v. Workers’ Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023 [55 Cal. Comp. Cases 470]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890, 92 Cal. Rptr. 162.) It is also well-established that the WCJ enjoys wide latitude to admit evidence necessary to determine the substantive rights of the parties, but in doing so, must consider whether the vocational evidence is substantial, whether it rests upon relevant facts, applies a correct legal theory, and refrains from surmise, speculation, conjecture, or guess. (Lab. Code, § 5708; Place, supra, 3 Cal. 3d 372; Owings v. Industrial Acc. Com. (1948) 31 Cal. 2d 689, 692, 13 Cal. Comp. Cases 80.)

In sum, vocational evidence continues to be relevant to the issue of permanent disability, and may be offered to rebut a scheduled rating by establishing that an injured worker is not feasible for vocational retraining. Vocational evidence may also be considered by evaluating physicians as relevant to their determination of permanent disability, and may assist the parties and the WCJ in assessing those factors of permanent disability. Finally, the WCJ retains the duty and the authority to review and weigh the medical and vocational evidence, and to enter corresponding orders, findings, decisions, and awards that are supported by substantial evidence in light of the entire record, including orders for development of the record where necessary. (Garza v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal. Comp. Cases 500]; see also Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal.App.4th 396, 404 [65 Cal. Comp. Cases 264] [the WCJ or the Board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evidence].)

The Appeals Board then refers to footnote 10 which states as follows:

As we noted in Escobedo, supra, “[t]he issue of the causation of permanent disability, for purposes of apportionment, is distinct from the issue of the causation of an injury. (See Reyes v. Hart Plastering (2005) 70 Cal. Comp. Cases 223 (Significant Panel Decision).) Thus, the percentage to which an applicant’s injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different.” (Escobedo, supra, at p. 611.)

On *25 at 2023 Cal. Wrk. Comp. LEXIS 30 [slip opn. page 14] of Nunes, the Appeals Board indicates the role of a trial judge in evaluating the evidence when the injured worker is deemed unable to benefit from vocational retraining due to an industrial injury where the evaluating physicians have indicated some medical apportionment:

Therefore, an analysis of whether there are valid sources of apportionment is still required even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant’s inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.”

On *29 at 2023 Cal. Wrk. Comp. LEXIS 30 [slip opn. page 17] of Nunes, the Appeals Board reminds trial judges to make determinations of fact and law for each injury claimed by an injured worker:

Here, the F&A fails to adequately address the issues submitted for decision by the parties, including permanent disability and apportionment for each injury claimed by applicant. Moreover, the Opinion on Decision fails to explain in detail the WCJ’s analysis as to each claimed injury and the associated issues submitted for decision, and further fails to provide appropriate citation to the evidentiary record or to legal authority. As we noted in Hamilton, supra, an opinion on decision that states the evidence relied upon and specifies in detail the reasons for the decision will serve to “assist the reviewing court to ascertain the principles relied upon by the lower tribunal, to help that tribunal avoid careless or arbitrary action, and to make the right of appeal or of seeking review more meaningful.” (Evans v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal.2d 753, 755 [33 Cal. Comp. Cases 350, 351].)

The current record does not afford an adequate basis for review of the evidentiary or legal conclusions reached by the F&A. Consequently, we will rescind the F&A and return this matter to the trial level for further proceedings and decision by the WCJ addressing each claimed injury. Upon return of this matter to the trial level, the parties may wish to obtain supplemental reporting from their respective medical and vocational experts to address apportionment in accord with the principles explained above.

5. This decision also applies to post 1/1/2013 dates of injury (footnote 8) even though this case involves pre-1/1/2013 dates of injury.

Footnote 8 states as follows:

We further observe that notwithstanding the statutory changes to the calculation of diminished future earning capacity (DFEC) made by section 4660.1, the holding in Ogilvie, which provides that vocational evidence may be offered to rebut the permanent disability rating schedule, continues to apply to all dates of injury, including those occurring on or after January 1, 2013. (See County of Alameda v. Workers’ Comp. Appeals Bd. (Williams) (2020) 85 Cal. Comp. Cases 792, 2020 Cal. Wrk. Comp. LEXIS 64 (writ den.); The Conco Companies v. Workers’ Comp. Appeals Bd. (Sandoval) (2019) 84 Cal. Comp. Cases 1067, 2019 Cal. Wrk. Comp. LEXIS 112 (writ den.); Hennessey v. Compass Group (2019) 84 Cal. Comp. Cases 756, 2019 Cal. Wrk. Comp. P.D. LEXIS 121.)

6. A “rebuttal of the AMA Guides” is not the proper way of thinking of challenging ratings—the rebuttal is of the permanent disability string rating and not of the AMA Guides.

Footnote 9 states:

The AMA Guides further provide that “[p]hysicians with the appropriate skills, training and knowledge may address some of the implications of the medical impairment toward work disability and future employment … more complicated are the cases in which the physician is requested to make a broad judgment regarding an individual’s ability to return to any job in his or her field. A decision of this scope usually requires input from medical and nonmedical experts, such as vocational specialists ….” (AMA Guides, 5th Ed., § 1.9, at pp. 13-14.)

7. What was wrong with the vocational expert opinions in Nunes?

Although the attorneys in Nunes properly and correctly sent the vocational reports to the medical-legal evaluators in this case for review and commentary, the vocational reports did not properly address medical apportionment. The orthopedic QME apportioned 40% of the Applicant’s cervical spine impairment to nonindustrial degenerative disc disease, and 60% of the Applicant’s carpal tunnel syndrome impairment to pre-existing non-industrial factors. The Applicant’s vocational expert only addressed the cervical spine medical apportionment and did not discuss or show any consideration for the carpal tunnel impairment and medical apportionment. The Appeals Board decision on this issue states:

The parsing of the various body parts/systems in this context, and the individualized analysis of their effect on applicant’s ability to benefit from vocational retraining, constitutes a valid and appropriate use for vocational evidence. 

However, having limited his consideration to only one body part, Mr. Gonzales then asserts that applicant’s prior award of disability and degenerative changes need not be considered, because they did not manifest in an inability to perform pre-injury job functions or reduced earning capacity. By discounting prior impairment because it did not manifest in the form of diminished pre-injury earnings, the analysis fails to account for “disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions) ….” (Escobedo, supra, at p. 607.) That is, the analysis fails to determine whether there is “substantial medical evidence that establishes that the asymptomatic condition or pathology was a contributing cause of the disability.” (Lindh, supra, at p. 1882.) Thus, we conclude that the vocational reporting from Mr. Gonzales does not adequately consider the issue of apportionment.

The Appeals Board then criticizes the defendant’s vocational expert’s opinion “engages in speculation rendering it unreliable. [The defense vocational expert’s reporting] does not explain how he arrived at the 10 percent figure, other than to note the factors of nonindustrial medical and legal apportionment will likely interfere with applicant’s reentry into the labor market. Accordingly, we are persuaded that [the defense vocational expert’s] report also does not constitute substantial evidence on the issue of apportionment.” The Appeals Board goes on to say:

In sum, factors of apportionment must be carefully considered, even in cases where an injured worker is permanently and totally disabled as a result of an inability to participate in vocational retraining. Expert vocational testimony may be utilized to identify and distinguish industrial and nonindustrial vocational factors, but may not substitute impermissible “vocational apportionment” in place of otherwise valid medical apportionment. Finally, we observe that an un-apportioned award may be appropriate where it can be established through competent medical and/or vocational evidence that the current industrial injury is the sole causative factor for the employee’s residual permanent disability.


The Nunes case serves as a guideline for counsel to develop the record on cases involving the potential of a 100% permanent and total disability award with or without apportionment of permanent disability to non-industrial factors. The many takeaway factors in this case will be used to teach attorneys, physicians, and vocational experts the standards of proof and the substantive information that needs to be adduced and produced by these experts so that a trial judge, the Appeals Board, and appellate courts can rely on their conclusions as substantial medical and vocational evidence to support an award.

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