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California: You, Too, Can Successfully Rebut a Scheduled Permanent Disability Rating

April 15, 2020 (9 min read)

As workers’ compensation practitioners, we know that the 2005 Permanent Disability Rating Schedule (PDRS) is rebuttable (see Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal. App. 4th 808 [75 Cal. Comp. Cases 837].). We also accept that the primary method for rebutting the scheduled rating is to demonstrate that the injured employee is not able to benefit from vocational rehabilitation and, as a consequence, the employee’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]). Rebutting the PDRS by this method is straightforward; after all, the Court of Appeals gave us the formula:

The first Step in any Le Boeuf analysis is to determine whether a work-related injury precludes the claimant from taking advantage of vocational rehabilitation and participating in the labor force. This necessarily requires an individualized approach … It is this individualized assessment of whether industrial factors preclude the employee’s rehabilitation that Ogilvie approved as a method for rebutting the schedule. (Contra Costa County v. Workers’ Comp. Appeals Bd. (Dahl) (2015) 240 Cal. App. 4th 746 [80 Cal. Comp. Cases 119].)

Exactly what constitutes substantial evidence to support the conclusion that an injured employee is not amenable to vocational rehabilitation and, therefore, has a diminished future earning capacity greater than that reflected in the PDRS was answered by two recent Appeals Board panel decisions. Those decisions are Thomas Hasson v. Ann Taylor (February 24, 2020) 2020 Cal. Wrk Comp. P.D. LEXIS___, and Suguey Moreno v. Kern County Superintendent of Schools (February 28, 2020) 2020 Cal. Wrk. Comp. P.D. LEXIS ___.

In both Hasson and Moreno two different panels affirmed findings of 100% permanent disability based upon a vocational expert’s individualized assessment of the vocational factors affecting the employee’s ability to return to work, which demonstrated that medical restrictions precluded the employee from being amenable to vocational rehabilitation. In both cases the respective panels found the vocational expert’s analysis of the employee’s vocational limitations constituted substantial evidence of permanent and total disability. That is, both Hasson and Moreno successfully rebutted the scheduled rating of their respective disabilities.

Thomas Hasson (Hasson) worked as a stock clerk and his duties required repetitive strenuous lifting and bending. Over the course of 18 years he sustained a cumulative industrial injury to his lumbar spine and bilateral hips. He had a right hip arthroplasty that was unsuccessful. Two-and-one-half years after that surgery, his primary treating physician (PTP) described Hassan as being in moderate to severe pain in the right hip with limited range of motion as well as being quite limited in his ability to do prolonged walking, standing or other activities. The PTP advised that Hasson was not capable of returning to work because of his ongoing pain. The Qualified Medical Evaluator (QME) opined that with regard to the lumbar spine, Hasson should be precluded from work involving excessive lifting, repetitive bending, prolonged sitting or standing, but endorsed a functional capacity evaluation. Initially, the QME described Hasson’s hip limitations as a preclusion from excessive or prolonged standing or walking, preclusion from squatting, twisting, kneeling, crawling, or engaging in other activities that might cause either a dislocation of or a periarticular fracture of the right hip. Later, however, he deferred the assessment of hip disability to the PTP but affirmed his lumbar findings.

The PTP performed an assessment of Hasson’s residual functional capacity. He found Hasson only capable of sitting, standing, walking or driving for less than one hour in an eight-hour day. He also found that Hasson was unable to lift, carry, push or pull over ten pounds, and that for items weighing less than ten pounds, Hasson was limited to less than five minutes. Because of the need to use certain medications, the PTP warned that Hasson would experience fatigue that would moderately impair his ability for concentration, persistence and pace. The PTP also opined that it was reasonably medically probable that Hasson’s fatigue would reduce the capacity to sit, stand, walk, lift, carry, push and pull. Further, Hasson would need to be able to alternate positions at will, lie down for five minutes every two hours, take a five-minute break every hour, and would be unable to perform simple tasks for two-thirds of the workday or more. For these reasons, the PTP concluded that Hasson was unable to do work of any kind.

Hasson was also evaluated by a vocational rehabilitation expert, Frank Diaz (Diaz). Diaz conducted interviews and vocational testing, and obtained background information including education, work history, and physical tolerance. He considered the physical limitations imposed by the QME and the PTP, noting that those restrictions essentially eliminate a significant portion of the labor market. Diaz also considered that Hasson’s fatigue would impair concentration and the ability to perform even simple tasks for two-thirds of the workday. Taking all of these factors into account, and in light of Hasson’s age, educational background, functional limitations, and chronic pain, Diaz concluded that Hasson is not able to benefit from vocational rehabilitation.

The panel affirmed the WCJ’s finding of 100% permanent disability, stating that the vocational evidence reported by Diaz is substantial evidence that shows the medical restrictions make Hasson unable to benefit from vocational rehabilitation and therefore preclude his ability to return to gainful employment.

Suguey Moreno (Moreno) sustained an admitted industrial injury to her right foot and back when she was assigned to move furniture between classrooms. She was seen at a clinic on the date of injury and diagnosed with a right foot contusion and a back sprain, and was released to modified work. Later that day she experienced cervical symptoms and awoke the next day with bladder and bowel incontinence. An MRI revealed a herniation at L5-S1. She experienced frequent headaches and constant low back pain radiating to the neck, and underwent an occipital cervical decompression. Symptoms of depression were also reported.

Dr. Previte (Previte) served as the orthopedic Agreed Medical Evaluator. He diagnosed Moreno with the lumbar herniation, cervical spine injury, urinary and bowel incontinence and Syringomyelia with described Chiari Malformation. As to causation of Syringomyelia with described Chiari Malformation, Previte advised that a neurosurgeon should address that issue.

Dr. Wang, a QME in neurology, evaluated Moreno. He concluded that Moreno’s Syringomyelia with described Chiari Malformation was a congenital condition that became symptomatic when it was trigged by the trauma of her industrial spinal injury. He opined that the trauma Moreno sustained when the wooden dresser fell on her foot caused her to hyperextend her body in an effort to remove her foot. Her initial complaints were to the low back and left foot, followed by cervical symptoms the same evening, and urinary and bowel incontinence the following morning. He then concluded with reasonable medical certainty that Moreno’s congenital abnormality was uneventful until she sustained the industrial injury, which then triggered a sequence of symptoms that are anticipated in symptomatic patients diagnosed with Chiari Malformation. As regards Moreno’s neurological symptoms, Dr. Wang found a 15% whole person impairment rating with 100% industrial causation. When questioned by defendant regarding apportionment, Dr. Wang revised his assessment by simply stating that 60% of the neurological impairment should be considered industrial and 40% should be considered nonindustrial. No further explanation was provided.

Moreno later underwent a lumbar fusion, which improved her back and leg pain but did not resolve left leg tingling and numbness. Because of the balance disorder, Moreno was required to use a cane. Moreno’s bladder and bowel incontinence did not resolve and necessitated ongoing catheterization as well as the use of adult diapers.

Dr. Previte described Moreno’s lumbar impairment as a 23% whole person impairment with a 3% add-on for pain, along with the 15% neurological whole person impairment recommended by Dr. Wang. He also recommended psychiatric and urology evaluations.

Dr. Chang evaluated Moreno as a psychology QME. He diagnosed a major depressive disorder and assessed Moreno’s psychological impairment as a 38% whole person impairment with moderate impairment in concentration, moderate to severe impairment with adaptation and social functioning, and severe impairment with activities of daily living. He opined that Moreno was not capable of engaging in vocational rehabilitation. Dr. Chang observed that Moreno is essentially housebound due to balance issues, and her urinary and bowel incontinence prevent socialization. She also has problems swallowing and speaking as well as diminished cognitive function. Dr. Chang recommended that Moreno be provided a caregiver to assist her with activities of daily living.

Gene Gonzalez (Gonzalez), a vocational expert, conducted an assessment of Moreno’s amenability to vocational rehabilitation. Gonzalez reviewed the medical reports from Dr. Previte, Dr. Wang, and Dr. Chang, and considered the medical work restrictions imposed by each of the physicians, and whether in light of those restrictions, Moreno retained the residual functional capacity to perform the requirements of her past relevant work. He also examined Moreno’s employment background and took into consideration the fact that post injury she applied for employment opportunities with the State of California Leap Program and eleven other job openings but did not receive any job offers. Gonzalez then observed that Moreno’s severe objective physical and cognitive disability, her subjective complaints, the work restrictions imposed on her, and the need to use pain medication effectively eliminate her functional capacity to perform the requirements of her past relevant work or any other occupation that is appropriately classified at the sedentary level. He then concludes that Moreno is not amenable to vocational rehabilitation and, accordingly, is 100% permanently disabled. Gonzalez’ conclusions were endorsed by Dr. Previte and Dr. Chang.

The WCJ found that defendant failed to meet its burden of proof to establish apportionment based upon substantial medical evidence. He then issued an award of permanent and total disability on the basis that Moreno successfully rebutted the scheduled permanent disability rating based on substantial medical and vocational evidence.

The panel affirmed each of these findings. As to the substantiality of the medical and vocational evidence, the panel acknowledged that Gonzalez’ individualized assessment of the vocational factors affecting Moreno’s ability to return to work demonstrates that the medical restrictions imposed by Drs. Previte, Wang, and Chang do limit her ability to work. Further, that Moreno’s unsuccessful attempts to secure employment and her severe physical, cognitive and mental limitations prevent her from benefitting from vocational retraining. Finally, that Dr. Previte and Dr. Chang agreed with Gonzalez’ vocational assessment that Moreno is permanently and totally disabled because she is not amenable to vocational rehabilitation.

Some of the most complex and contentious workers’ compensation litigation involves claims of 100% permanent disability. After all, the rating scheduled by the PDRS is presumptively correct. So when the employee attempts to rebut the scheduled rating, he or she is faced with the literal uphill battle. Ogilvie and Dahl remind us that the primary method of rebuttal is to show that the injured employee is not able to benefit from vocational rehabilitation so that his/her diminished earning capacity is greater than that reflected in the PDRS. Hassan and Moreno provide detailed examination of the nature and substance of the medical and vocational evidence required to meet that challenge. Be sure to keep their citations handy—your next case just might involve a claim of permanent and total disability based on rebuttal of the PDRS.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

The PDF for Hasson is below. For the PDF of Moreno, click here.

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