by James J. Lee –
Workers’ compensation law brings together the fields of law, insurance, medicine, and accounting, to name the more obvious ones. Often the law requires the other fields to succumb for its purposes, even when those fields have no interest in doing so. Apportionment is such an area.
Apportionment seeks to divide liability in an equitable fashion. Simply put, we need apportionment so that we know who is responsible for what.
Medicine, however, is disinterested in knowing what caused the controversy. Rather, physicians focus is on fixing the medical malady. So when a patient walks in with a traumatic brain injury, the first goal is to treat him or her. Only later, if there is time, will a physician concede who is responsible.
In forcing medical legal evaluators to conduct apportionment analyses, we are in fact forcing them to do something they are unaccustomed (and often unprepared) to do. It is guesswork, messy and confusing for the doctors. They hate it but they have to do it as required by Escobedo v. Worker’s Comp. Appeals Bd. (2005) 70 Cal. Comp. Cases 604. This makes it the perfect avenue for the diligent attorney to apply justice.
A distinction some doctors seem not to understand is the causation to injury versus causation to disability. This is understandable as Labor Code section 4663(a) only, cryptically states, “Apportionment of permanent disability shall be based on causation.” A lot could be read into this statement but case law (United Airlines vs. WCAB (Milivojevic) 2007 72 Cal. Comp Cases 1415 and Vaira vs WCAB (2007) 72 Cal. Comp. Cases 1586) makes the fine distinction between causation to injury versus causation to impairment.
In United, a man suffering from high cholesterol suffered an industrial stroke. The court found that the cholesterol contributing to the stroke was irrelevant for the purposes of apportionment if it did not contribute to the disability.
In Vaira, an injured worker with a history of non-industrial osteoporosis suffered a back strain when she tried to pick up some pamphlets that had dropped to the ground. The Court found it improper to refer to the osteoporosis for apportionment even if it did contribute to the injury. The Court wanted the doctor to find whether the osteoporosis contributed to the disability.
What is noteworthy about these cases is that they are specific injury cases. There is a non-industrial condition lying wait when a single industrial injury event occurs. Permanent disability arises from that injury; the risk factors contributing to the injury do not matter unless they contribute to the disability.
But what about cumulative trauma cases? These are repetitive events often involving body parts such as hands and shoulders we use every day for non-industrial events. If the eventual symptoms that cause the disability (such as tingling, range of motion deficit or pain) stem from non-industrial events (such as driving, cleaning, mopping), does apportionment not apply? The answer is a resounding “yes”.
One key to attacking the 100% industrial causation reports of QMEs is to focus on the symptoms leading to permanent impairment. If it is tingling for example, there should be activities of daily living such as texting, chatting online, or general computer use that may be contributing. A back strain pain complaint may be related to an applicant who sits on the couch or at his computer too much at home. In other words, we need to force the evaluators to consider the cumulative trauma of life.
Inasmuch as disability is based on the patient’s symptoms, we can focus the physician’s attention on the symptoms of disability rather than just the history of risk factors. Of course, even physicians who admittedly are guessing at apportionment rarely change their opinions. However, if they are guessing, an opinion of 100% industrial causation should be just as attackable as 50% non-industrial opinions. Never allow a physician to “guess” on this important issue. Rather, make certain the WCJ must award apportionment by insisting the physician provide “substantial” evidence!
The doctor must:
- frame his/her opinion in terms of “reasonable medical probability”
- base the opinion on the facts, exam and history, and
- provide reasoning supporting his/her apportionment conclusion
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