Workers’ Compensation Appeals Board rebuts scheduled rating to make applicant 100 per cent

This is a Writ Denied case

This is a very significant case for workers’ compensation principles.

The applicant suffered a right arm injury resulting in an amputation. The applicant also suffered left shoulder and psyche injures. The applicant was seen by his treating psychologist and an Agreed Medical Examiner (AME) for the orthopedic injuries.

A formal rating was issued by the DEU of the applicant’s injuries of 92 per cent. Both doctors indicated the applicant was unable to return to his former occupation and could return to modified work with certain restrictions. There was no evidence the employer could accommodate the restrictions.

At trial the Workers’ Compensation Judge (WCJ) determined that the applicant was not amenable to rehabilitation or modified work with the defendant. The WCJ discounted the vocational expert on the grounds that the applicant’s work life of 1.1 years had already been exceeded. The WCJ found the applicant permanently and totally disabled (100 per cent).

The Workers’ Compensation Board (WCAB) on reconsideration agreed with the WCJ. The applicant’s permanent disability was greater than the scheduled rating based upon substantial evidence that the applicant was not capable of vocational rehabilitation. The scheduled rating is presumptively correct but may be rebutted. Here the WCJ relied on the entire record to determine the applicant was precluded from rehabilitation or performing modified work. Court of Appeal denied defendant’s Petition for Writ of Review challenging WCAB’s finding. HB

Case: Comp West v. WCAB (Gonzalez)

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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