In 2005, the California Legislature provided insurers with a major relief by limiting temporary disability to 104 weeks for most injuries.
One exception was for injuries resulting in an amputation, which provides for up to five years of temporary disability. But what constitutes an amputation has been the subject of debate in the years since this fundamental reform.
Labor Code section 4656(c)(3) provides for up to 240 weeks (five years) of temporary disability when an employee suffers a serious industrial injury, including hepatitis, severe burns, HIV, high-velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis, chronic lung disease, and “amputations.” None of these terms are defined, however, and their interpretation has been left to subsequent court decisions.
In 2007, the WCAB defined an amputation as “as the severance or removal of a limb, part of a limb, or other body appendage.” (Cruz v. Mercedes-Benz of San Francisco (2007) 72 Cal. Comp. Cases 1281, 1283.) In Cruz, the WCAB rejected the claim that a removal of a portion of an internal structure, in that case part of a spinal disc, was an “amputation.”
The WCAB adopted “the common meaning of the term ‘amputation,’” which encompassed severance of only “external projecting body parts.” Removal of internal parts, even if they include bone, could not constitute an amputation.
Subsequent cases focused on the “severance” aspect of this definition in interpreting and applying section 4565. One case stated that an amputation required removal, by surgery or traumatic loss, of external projecting body parts and determined that a total knee replacement was not an amputation. (Julie Ramirez v. Workers’ Comp. Appeals Bd. (2008) Cal.Comp.Cases 1120, 1122 (writ den.))
In another, the partial removal of a medial malleolus was not an amputation. (Murray v. Workers’ Comp. Appeals Bd. (2009) 74 Cal.Comp.Cases 379 (writ den.)).
Finally, the amputation exception did not apply to an applicant who had 16 surgeries, including a radial head excision, and surgical removal of bone and bone tissue in the left upper limb.(Ortega v. Workers’ Comp. Appeals Bd. (2008) 73 Cal.Comp.Cases 969 (writ den.))
However, in what appears to be a departure from the requirement that purely internal surgeries could not constitute amputations, the WCAB recently held that the internal shortening of a limb may constitute an amputation, even though no external appendage was removed.
In Parker v. AC Transit (2021 Cal. Wrk. Comp. P.D. LEXIS 205), applicant underwent a “limb shortening surgery” of the tibia and fibula after which he lost approximately two inches in length from his left leg. In technical terms, the surgery involved the placement of a revision intramedullary tibial nail placed in a locking fashion along with an open reduction, internal fixation (ORIF) utilizing two plates and screws for fixation along with the implantation of bone morphogenic protein. In layman’s terms, this was not an amputation per se, but rather a surgery that incidentally resulted in a shortening of applicant’s left lower leg.
The trial judge found, and the WCAB agreed, that the amputation exception in Section 4565 does not require the severance of an entire external body part. Accordingly, applicant’s last surgery was found to be sufficient to constitute the removal of part of a limb, and applicant fell under the amputation exception the 104 week cap.
The takeaway from the Parker case is that treatment that results in a shortening of a body part, appendage, or extremity may be considered an amputation and therefore allowing five years of temporary disability. Although a surgery has not resulted in the removal of bone, tendon or other biological material, this may no longer be a prerequisite to successfully claiming there has been an amputation. Surgeries that have the effect of shortening or altering a limb, even if the surgery does not involve the removal or dissection of a bone, tendon, organ or muscle, may constitute an amputation.
For example, if applicant undergoes surgery, such as a total knee replacement, that results (perhaps months later) in a shortened leg, temporary disability exposure may be increased to five years under the amputation exception.
Defendants should immediately take action if there is any indication that applicant is attempting to claim an amputation. If the treating physicians or QME are moderate and reasonable, defendants should obtain their medical opinion that the claimed surgery was not an “amputation.” Expert medical opinion may be used to rebut the claim that a surgery was an amputation simply because it resulted in the alteration of a limb or appendage.
The WCAB’s decision in Parker should serve as a warning that the definition of “amputation” in Labor Code 4656 is no longer limited to the removal of an external appendage, or even the removal of biological material. Instead, when a surgery merely has the effect of altering a body part, such as shortening a limb, the five year extended temporary disability period may be applicable.
Michael Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Michael practiced civil litigation and employment law. If you have questions about workers’ compensation defense issues, feel free to contact Michael at firstname.lastname@example.org or (408) 392-8202.
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