Gill v. Workers' Compensation Appeals Board

California Court of Appeal Apr 24, 1985 No. G002336Published

Before: Crosby

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Holding. The court held that evidence regarding an injured employee's inability to participate in vocational rehabilitation is relevant to determining permanent disability and must be admitted in compensation proceedings, regardless of whether the employee has completed the formal rehabilitation process.

Issues

Was relevant evidence of an employee's inability to participate in vocational rehabilitation improperly excluded in violation of due process?
Must an injured worker obtain a formal finding from the Bureau of Rehabilitation before evidence of vocational disability is admissible in disability proceedings?

Disposition. annulled and remanded

Quotations verified verbatim against the opinion

“The issue in this case is more basic: Was relevant evidence of the employee’s inability to participate in a vocational rehabilitation program improperly excluded in violation of her right to due process? The answer, obviously, is yes.”

“Evidence that an employee cannot participate in vocational rehabilitation is relevant to the issue of her or his permanent disability.”

Opinion

CROSBY, J.

On September 29, 1982, Edith Gill injured her back in an on-the-job lifting accident. She underwent surgery two months later. After approximately one year, her treating physician declared her condition “permanent and stationary.” He added Gill was “a candidate for certain types of job retraining and she will require the availability of medical follow-up in the future.”

Several weeks later her employer’s workers’ compensation carrier advised she might be eligible for rehabilitation benefits, and she was referred to Workman Morris Associates for an evaluation. At the end of her two-week evaluation, the counselor noted Gill’s “pain-related behaviors . . . [were] felt to contraindicate a return to work at this time” and concluded she did “not appear to be able to return to the competitive labor market.” Based on this report, the employer petitioned the Bureau of Rehabilitation to suspend Gill’s rehabilitation benefits. Gill, who agreed she was physically unable to participate in vocational rehabilitation, did not object. Pursuant to the Bureau’s procedure, the file was closed, but no formal order issued.

The hearing in Gill’s compensation case was held some six months later. Her offer of the vocational counselor’s reports and testimony was denied “on the grounds that the applicant’s testimony and the medical opinion of the doctors is the best evidence.” The issue of Gill’s permanent disability was submitted to a ratings specialist, who recommended a 77 percent permanent disability rating. The workers’ compensation judge issued his “Findings and Award” on July 6, 1984. Gill was determined to have a 77 percent permanent disability and to be in need of further medical treatment.

[309]

Gill petitioned for reconsideration, claiming the judge erred in refusing to admit the reports and testimony of the vocational rehabilitation counselor. Gill argued evidence of her inability to compete in the labor market was relevant to her overall permanent disability rating. Citing

LeBoeufv. Workers’ Comp. Appeals Bd.

(1983) 34 Cal.3d 234 [193 Cal.Rptr. 547, 666 P.2d 989], the Workers’ Compensation Appeals Board (WCAB) granted the petition for reconsideration. On reconsideration, however, the WCAB determined the workers’ compensation judge “properly rejected the less reliable secondary evidence regarding vocational rehabilitation” and affirmed the decision. The WCAB observed, “The testimony and reports of the vocational rehabilitation counselor are not admissible on the

Gill v. Workers' Compensation Appeals Board

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CROSBY, J.

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