Nunes I and Ii: a Revised Paradigm for the Use of Medical and Vocational Evidence to Determine Pd and Apportionment

• Publication year: 2024
• Citation: Vol. 37 No. 1
• Author: MARGUERITE SWEENEY, ESQ.

Nunes I and II: A Revised Paradigm for the Use of Medical and Vocational Evidence to Determine PD and Apportionment

MARGUERITE SWEENEY, ESQ.

SAN FRANCISCO, CALIFORNIA

Last year, the Workers Compensation Appeals Board issued two contiguous en banc decisions. In Nunes I, the Appeals Board ruled that Labor Code section 4663 governs the standard for apportionment and requires evaluating physicians, not vocational experts, to make apportionment determinations. Accordingly, the concept of "vocational apportionment" is not legally cognizable. Vocational evidence may be used to address issues relevant to permanent disability and apportionment, and must address the apportionment described in the medical evidence. In Nunes II, the Board affirmed their holdings and gave additional explication. Both decisions provide comprehensive analyses and guidelines that are well-grounded in statutory and case law. They should be read thoughtfully by workers compensation practitioners.¹

This article focuses on two crucial takeaways: The requirement that both medical and vocational reporting constitute substantial evidence to be legally valid, and the proper uses of vocational evidence by physicians in deciding PD and apportionment.

Nunes² describes the roles of medical and vocational experts, who share a common underlying function which is to assist in determining the most accurate permanent disability rating. Nunes implies that there will be a discovery process wherein the medical and vocational experts participate in a synergetic process in which the vocational expert considers the medical evidence and then provides a vocational analysis to the evaluating doctor for the doctor's consideration.

I. BACKGROUND

Ms. Nunes sustained industrial injuries in 2011. The QME and both vocational experts agreed that she was unable to work in the open labor market. The QME apportioned some disability to non-industrial factors. The applicant's vocational expert reviewed the medical record, including work restrictions, and conducted vocational testing with a transferable skills analysis. Citing Ms. Nunes' work history, he concluded that the medical non-industrial factors had no impact on Ms. Nunes' earning capacity, that her industrial injuries were the sole cause of her total loss of future earnings capacity, and that there was no vocational apportionment to preexisting non-industrial factors. The defendant's vocational expert also concluded that Ms. Nunes had sustained a total loss of earning capacity but found 10% vocational apportionment to non-industrial factors. The trial judge relied on the applicant's vocational evidence and awarded total PD without apportionment.

On...