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Reconsideration granted and decision rescinded; applicant not a QIW and not entitled to VRMA.
The WCAB rescinds the prior decision and returns the matter to the trial level to determine if the applicant is a qualified injured worker (QIW) and other related issues.
This case concerns an applicant who sustained an industrial injury to his right elbow and upper extremity, resulting in work restrictions despite a 0% whole person impairment rating under AMA guidelines. The Workers' Compensation Appeals Board affirmed the WCJ's decision that the applicant is a Qualified Injured Worker (QIW) entitled to vocational rehabilitation services. The Board found that the applicant's work restrictions constitute an impairment of earning capacity and a competitive handicap, thus qualifying him for benefits under former Labor Code section 4635(a).
This case concerns the application of the correct permanent disability rating schedule for an admitted industrial injury. The defendant sought reconsideration of a finding that the 1997 schedule applied, arguing the treating doctor's reports were insufficient to establish permanent disability prior to January 1, 2005. The majority denied reconsideration, finding Dr. Murphy's reports, along with a QIW finding, constituted substantial evidence of permanent disability under the applicable statute. A dissenting commissioner argued Dr. Murphy's reports lacked sufficient analysis and rationale to be considered substantial evidence.
The Appeals Board granted reconsideration, amending the prior award to allow the employer a credit against Vocational Rehabilitation Maintenance Allowance (VRMA) for wages earned by the applicant from subsequent employment. While the applicant was found to be a Qualified Injured Worker (QIW) entitled to vocational rehabilitation services and VRMA, the Board distinguished this case from *Gamble v. Workers' Comp. Appeals Bd.*, finding that the applicant's subsequent employment replaced her injured position rather than being concurrent. Therefore, allowing the credit prevents the applicant from receiving a windfall and is consistent with the wage-loss basis of temporary disability indemnity.
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