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HARRIS: L.C. 4660(c) says the schedule is “prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.” Since the new schedule does not properly calculate PD, what evidence can applicants’ attorneys use to establish loss of earning capacity and the appropriate level of PD? MARTIN: Vocational experts are uniquely qualified to calculate this loss. I believe that as we grow accustomed to the new way that PD is measured, and the relative ease in proving it up with a vocational expert, members of the workers’ compensation community will focus on other aspects of the legislation. For example, I don’t think we have even scratched the surface of what will constitute valid apportionment. The roadmap to proving the new PD is remarkably clear, much clearer than many other provisions of the legislation. One only needs to look at the legislation itself, the AMA directives, and the applicable case law.	Prima Facie: is a Latin expression meaning "at first sight," used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. List of Voc Experts for DFEC Med-Legal has compiled a list of vocational experts who are prepared to do DFEC analysis.
The new Regulation 9805 adopts the AMA Guides, 5th Edition, in their entirety.	§9805 Schedule for Rating Permanent Disabilities, Adpotion, Amendment: The method for the determination of percentages of permanent disability is set forth in the Schedule for Rating Permanent Disabilities, which has been adopted by the Administrative Director effective January 1, 2005, and which is hereby incorporated by reference in its entirety as though it were set forth below. The schedule adopts and incorporates the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment 5th Edition. The schedule shall be effective for dates of injury on or after January 1, 2005 and for dates of injury prior to January 1, 2005, in accordance with subdivision (d) of Labor Code section 4660, and it shall be amended at least once every five years.
Chapter 1 of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) admits the critical limitation of the WPI percentages: “The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work.” (page 4) “The Guides is not intended to be used for direct estimates of work disability. Impairment percentages derived according to the Guides criteria do not measure work disability. Therefore, it is inappropriate to use the Guides’ criteria or ratings to make direct estimates of work disability.” (page 9) To illustrate this, the Guides give this example: “[A] 30% impairment rating does not correspond to a 30% reduction in work capability. Similarly, a manual laborer with this 30% impairment rating due to pericardial disease may be completely unable to do his or her regular job and, thus, may have a 100% work disability.” (page 5) The physician’s responsibility in assessing work disability (as distinguished from impairment) is to determine if the impairment results in functional limitations. (page 15) Return to work determinations are complicated. “A decision of this scope usually requires input from medical and nonmedical experts, such as vocational specialists, and the evaluation of both stable and changing factors, such as the person’s education, skills, and motivation, the state of the job market, and local economic considerations.”(page 14)	“impairment percentages derived from the Guides criteria should not be used as direct estimates of disability. Impairment percentages estimate the extent of the impairment on whole person functioning and account for basic activities of daily living, not including work.” (Guides, page 13)
I can tell those who have read the Guides from those who have not by how surprised they are when they hear that the Guides tell us to use a vocational expert to evaluate Permanent Disability.	“The impairment evaluation, however, is only one aspect of disability determination. A disability determination also includes information about the individual’s skills, education, job history, adaptability, age, and environmental requirements and modifications. Assessing these factors can provide a more realistic picture of the effects of the impairment on the ability to perform complex work and social activities.” (Guides, page 8)
The AMA Press also published Disability Evaluation (2nd Edition) which assists in the assessment of disability and return-to-work issues under the Guides. Chapter 45, “The Role of the Vocational Rehabilitationist,” states, in relevant part: “Determination of the probability of a person returning to work and earning substantive income in the future requires understanding of the physical and mental limitations associated with injury or trauma as established by physicians and psychologists, and knowledge of the physical and mental demands of the work, the skill and knowledge requirements of the work, availability of work in the labor market, and the hiring practices of employers. It is the vocational rehabilitation is who has the knowledge, skills, and professional experience to make decisions about work and earnings, issues seen as critical to disability determination in civil and administrative law proceedings. Therefore, physicians should be wary about making statements about a person’s ability to acquire and perform work. These issues are better left to a vocational rehabilitationist. Transferable skills, adaptation to change, impairment, work, and earnings must be addressed by a vocational rehabilitationist before statements about disability can be made.” (page 644, emphasis added)	Disability Evaluation (2nd Edition) Authors: Gunnar BJ Andersson, Stephen L Demeter ISBN#: 0-3230-0959-X From Amazon From AMA “It is the vocational rehabilitationist who explains the practical implications of impairments and functional limitations on work and disability.” (page 647)
Finally, the body of case law on the subject is in harmony with the statutory and AMA approach to the calculation of the new PD. In LeBoeuf v. WCAB, 334 C3d. 234, 48 CCC 587 (1983), the California Supreme Court found that a determination that an injured worker cannot be retrained for any suitable gainful employment may adversely affect a worker's overall ability to compete. Accordingly, that factor should be considered in any determination of a permanent disability rating. In Nielsen v. WCAB, 39 CCC 83 (1974), the court rejected the standard rating as not being “rationally related to Applicant's diminished ability to compete on the open labor market” (referring to former LC 4660) and found it “arbitrary, unreasonable and not supported by the evidence in light of the entire record.” In other words, the courts recognize that LC 4660 only affords “prima facie” status to the rating schedule, and confirms it is subject to rebuttal. In my opinion, the new schedule is particularly vulnerable to being rebutted for the reasons I stated earlier.	The way to rebut the new schedule is through vocational analysis of diminished future earning capacity. Memorandum of Points and Authorities in Support of Expert Testimony to Establish Diminished Future Earning Capacity.

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