WORK COMP LEGAL UPDATE

RETURN OF NUNES: VOC EXPERTS MUST FOLLOW THE LAW

In Nunes v. DMV (6/22/2023) the WCAB held that a vocational rehabilitation expert cannot substitute medical apportionment for "vocational apportionment" which is not provided for in the Labor Code. In response to that decision, the applicant filed a petition for reconsideration claiming a vocational expert may substitute a competing theory of apportionment, especially if medical experts do not consider vocational expert opinions.

In response, the WCAB issued another en banc decision in Nunes II aka Nunes v. DMV (8/29/2023) which provides that: 1) Apportionment is determined on a medical basis by evaluating physicians; 2) If the medical reporting fails to adequately address apportionment, then the result is either there is no permissible apportionment or the record needs to be further developed; 3) There is no legal allowance for "competing" apportionment theories; and 4) Vocational evidence should be considered by physicians in addressing the issues of disability impairment and apportionment.

[COMMENT: In short, the WCAB has now clearly stated twice this year that vocational reports must follow apportionment as defined in the Labor Code, and cannot apply some creative alternative apportionment theories.]

COVID PRESUMPTION CASE

In State of CA-IHSS v. WCAB (Sevillano) (2023) 88 CCC 808, Sevillano claimed to have contracted COVID while providing home health care services to an elderly couple. Defense produced hospital records where she stated her roommates also had COVID, and demonstrated the applicant's lack of credibility due to numerous inconsistent statements. As a result, the applicant was deemed not credible by the trial judge, and issued a ruling that the COVID presumption had been successfully rebutted.

On reconsideration, the WCAB overturned the trial decision, noting the presumption had to be overcome with scientific or medical evidence, and not based on a single comment in a hospital record which the applicant denied stating (despite her lack of credibility). The defense's writ to the Court of Appeal was denied.

[COMMENT: Bad decision by the WCAB which simply rubber-stamped the presumption and discounted both the evidence and the judge's opinion on the applicant's lack of credibility. Case serves as a reminder that when facing a presumption, the defense needs to provide almost overwhelming evidence to even have a shot of overcoming a presumption.]

HEWS NEWS:

H. Neal Wells IV successfully obtained a take-nothing decision against Medland Medical in Uraje v. LJL Engineering (2023). Case was delayed with medical treatment initially authorized with Concentra, whose physician found no evidence of injury or need for treatment, resulting in the case being denied. AA referred the applicant to Medland Medical which provided treatment and a med-legal exam. The trial judge ruled no treatment charges were allowed as the vendor failed to prove injury; and no med-legal charges were allowed because the procedure to refute the PTP report from Concentra was to obtain a QME per L.C. 4060 as oppose to getting a "competing" PTP med-legal report from Medland Medical.

HEWS welcomes associate attorney Nirvana Youssefi to our Orange County office. She has been handling workers' compensation defense cases for the last five years after previously handling applicant and personal injury cases.

September HEWS Work Anniversaries: SBR Billing Dept. staff members Dena Bello (6 years) and Brenda Molina (1 year), and ANA legal assistant Xochilt Hernandez (7 years).

Main Contributor: H. Neal Wells IV

Editorial Staff: Lynn P. Peterson

HEW&S OFFICES: COVERING ALL OF CALIFORNIA

San Bernardino (909) 890-0403 (sbr@hmplc.com)
Orange County (949) 250-1216 (ana@hmplc.com)
Glendale (818) 265-0940 (cxr@hmplc.com)
Calabasas (818) 348-8366 (cls@hmplc.com)

www.hmplc.com

The above is for informational purposes only, and not intended to constitute legal advice.