A recent panel decision, Moraido v. County of San Diego (2024) Cal. Wrk. Comp. P.D. LEXIS 375, provides valuable insight for claims adjusters and defense attorneys on the interplay between vocational evidence, medical apportionment, and permanent disability in California workers’ compensation cases. While this decision has not been designated a “significant panel decision,” it nonetheless underscores key strategies for effectively using vocational experts under the framework established by the Nunes en banc decisions. Below is an overview of the decision’s highlights and best practices to consider when litigating similar claims.
Background: Missing Records and Unresolved Permanent Disability
In Moraido, the applicant claimed injury to his bilateral upper extremities (including shoulders and wrists), with compensable consequence injuries—psyche and gastroesophageal reflux disease (GERD). The Workers’ Compensation Judge (WCJ) initially found 65% permanent disability (PD) after apportionment. The applicant sought reconsideration, arguing for 100% PD based on:
- A conclusive presumption under Labor Code § 4662(a).
- Vocational rehabilitation evidence (LeBoeuf theory) that he was permanently and totally disabled.
The Workers’ Compensation Appeals Board (WCAB) granted reconsideration and ultimately rescinded the WCJ’s PD and apportionment findings, remanding the matter for further proceedings due to:
- Inconsistent or incomplete medical reports (including a key deposition transcript).
- Unclear or insufficiently supported medical apportionment.
- Vocational evidence that improperly attributed portions of the applicant’s disability to non-industrial factors—an approach disapproved in Nunes v. State of California, Dept. of Motor Vehicles (Nunes I & II).
Key Takeaways
1. No Conclusive Presumption of Total Disability
The applicant argued a total disability presumption under Labor Code § 4662(a). The Board rejected this, noting no qualifying “brain injury” resulting in permanent mental incapacity, nor a loss of both hands or their use—two specific criteria for the conclusive presumption.
2. Complete Medical Record Is Critical
A significant reason for remand was the incomplete deposition transcript of the pain-management QME, who initially assigned a 64% Whole Person Impairment (WPI) but later appeared to revise it down to 25%. Since the transcript pages were missing, the WCAB could not confirm which number reflected the QME’s final, well-reasoned opinion. This illustrates how an incomplete record can derail a final determination and extend litigation.
3. Valid Medical Apportionment—Not Speculation
The WCJ noted the applicant’s non-industrial cardiovascular condition and a prior depressive disorder, but the WCAB found the evidence insufficiently specific to support apportionment under Labor Code § 4663. For apportionment to hold, a physician must detail how and why non-industrial factors contribute to the applicant’s disability. Vague references or incomplete history—particularly regarding the applicant’s cardiac condition—will not satisfy Escobedo v. Marshalls (70 Cal.Comp.Cases 604) requirements.
4. Nunes I & II: Limits on “Vocational Apportionment”
Both the applicant’s and defendant’s vocational experts used (or rejected) “vocational apportionment” in ways the Board deemed impermissible under Nunes I & II. The Board reiterated:
- Vocational experts may rebut the schedule if they show the injured worker is not feasibly retrainable based on the industrial injury alone.
- They cannot, however, substitute their own “vocational apportionment” for valid medical apportionment. Vocational experts should only incorporate medically substantiated apportionment factors in assessing employability or retraining feasibility.
5. Coordinating Vocational and Medical Evidence
The decision also highlights the interplay between medical and vocational evidence:
- Physicians should review vocational reports if they shed light on the applicant’s real-world functional capacity, while
- Vocational experts must rely on accurate, up-to-date medical opinions for any portion of the disability attributed to non-industrial causes.
Practical Defense Strategies
- Secure a Complete Record Early
- Verify that all QME/AME depositions are fully transcribed and on file before proceeding to trial. Missing pages can invalidate or complicate pivotal testimony on permanent disability.
- Demand Clarity on Medical Apportionment
- If a physician cites non-industrial factors (e.g., cardiac conditions, psychological history), request a supplemental report to pin down the exact percentage and basis for apportionment. Vague references to “significant health concerns” will not withstand Board scrutiny.
- Educate Vocational Experts on Nunes
- Instruct them to refrain from creating or ignoring apportionment without referencing valid medical evidence. “Vocational apportionment” is disallowed if it does not flow from a physician’s documented opinions.
- Demonstrate Feasibility for Retraining
- Develop thorough labor-market research, transferable skills analyses, and potential accommodations. A strong showing here can defeat an assertion that the applicant is 100% disabled merely by vocational analysis.
- Expect Supplemental Reporting
- Since Moraido underscores the interplay among medical, psychiatric, and vocational evaluations, you may need additional or updated reporting after the vocational experts revise their analyses. Proactive requests minimize delays and keep the defense strategy cohesive.
Conclusion
The Moraido v. County of San Diego panel decision serves as a cautionary tale on the importance of maintaining a complete record, substantiating all non-industrial apportionment factors with solid medical evidence, and properly aligning vocational expert testimony with the Nunes I & II framework. By ensuring clear, consistent medical opinions and instructing vocational experts to avoid impermissible “vocational apportionment,” claims professionals and defense counsel can better manage the risk of inflated permanent disability awards.
For more information on how this decision may affect your claims, or to discuss best practices for deploying vocational experts in light of Moraido and Nunes, please visit our website at www.rjylaw.com. Our firm is dedicated to delivering timely, effective defense solutions in California workers’ compensation matters.
