ADJ10870144 — California WCAB decision

What the panel ordered

Petition for reconsideration denied, affirming the award of costs to applicant's counsel for vocational expert services.

Defendant sought reconsideration of the July 22, 2024 Findings and Order Granting Cost Petition of WCJ David Bonemeyer, which awarded reimbursement for vocational expert litigation costs.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRApplicant prevailedlumbar spine · left foot

The vocational expert report was reasonably and necessarily obtained at a time when the applicant's condition and permanent disability status were evolving, and the report had the potential to affect the permanent disability rating, making the costs reimbursable under Labor Code section 5811.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant was declared permanent and stationary and a Qualified Injured Worker by QME Dr. Ali Soozani, supporting eligibility for vocational rehabilitation.

Favours Applicant prevailed

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

QMERelied upon · spine

Evaluated applicant on March 15, 2019 and June 29, 2021; declared applicant permanent and stationary and a Qualified Injured Worker (QIW); increased impairment assessment in 2021 and found need for vocational rehabilitation.

The QME's findings established the applicant's status as a QIW and the need for vocational rehabilitation, supporting the reasonableness of obtaining vocational expert services.

From the decision · page 2The parties selected Ali Soozani, D.O., Ph.D., to act as the Qualified Medical Evaluator (QME). Applicant has also obtained treatment from treating physicians Kiyokazu Yoshida, M.D., Ph.D., and Eldan Eichbaum, M.D.

PTPRelied upon · spine

Referred applicant for spine surgery consultation on June 8, 2020; noted significant increase in symptoms and interval changes in medical condition.

The treating physician's referral for surgery and documentation of worsening condition supported the need for vocational expert evaluation at that time.

From the decision · page 2The parties selected Ali Soozani, D.O., Ph.D., to act as the Qualified Medical Evaluator (QME). Applicant has also obtained treatment from treating physicians Kiyokazu Yoshida, M.D., Ph.D., and Eldan Eichbaum, M.D.

secondary_treaterRelied upon · spine

Diagnosed severe lumbar spine conditions and recommended multi-level lumbar-spine fusion surgery; surgery authorized by defendant's Utilization Review vendor.

The specialist's diagnosis and surgery recommendation indicated the severity of the applicant's condition, supporting the vocational expert evaluation.

From the decision · page 2The parties selected Ali Soozani, D.O., Ph.D., to act as the Qualified Medical Evaluator (QME). Applicant has also obtained treatment from treating physicians Kiyokazu Yoshida, M.D., Ph.D., and Eldan Eichbaum, M.D.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Costa v. Hardy Diagnostic (2007) 72 Cal.Comp.Cases 1492 (Appeals Board en banc)

Costs of evidence on and/or in rebuttal to a permanent disability rating must be reasonable and necessary at the time incurred to be reimbursable under Labor Code section 5811.

The Board applied this standard to determine that the vocational expert report was reasonably and necessarily obtained and thus costs were reimbursable.

From the decision · page 5[T]he costs of evidence on and/or in rebuttal to a permanent disability rating must be reasonable and necessary at the time they were incurred, and such determination will also be made on a case by case basis. We further note that as with medical-legal costs, which may be reimbursable even though the applicant is unsuccessful in his or her claim (see, e.g., Subsequent Injuries Fund v. Industrial Acc. Com. (Roberson) (1963) 59 Cal.2d 842, 844 [28 Cal.Comp.Cases 139, 140]; Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789, 802 [59 Cal.Comp.Cases 461, 471]), the expert evidence offered by an applicant does not necessarily have to successfully affect the permanent disability rating to be reimbursable. At the same time, however, the WCAB has the discretion to balance the amount of such costs against the benefit obtained. (See Jimenez v. San Joaquin Valley Labor (2002) 67 Cal.Comp.Cases 74, 84§ 85, fn.

Barr v. Workers' Comp. Appeals Bd. (2008) 164 Cal.App.4th 173

Reports that are inadmissible may still be valuable for preparing hearings or settlement negotiations, allowing WCAB discretion to award costs under Labor Code section 5811.

The Board cited this case to support awarding costs for vocational expert reports even if not admissible, emphasizing WCAB's broad discretion.

From the decision · page 6The following year, the court of appeal in Barr v. Workers' Comp. Appeals Bd. (2008) 164 Cal.App.4th 173 [73 Cal.Comp.Cases 763] (Barr) cited our reasoning in Costa with approval when it concluded that admissibility is not a prerequisite to a determination that a vocational report was reasonably and necessarily incurred, and thus reimbursable pursuant to section 5811. The court in Barr observed:

ADJ10870144 · October 9, 2024

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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