Apportionment

Matlock v. Department of Transportation (BPD) (45 CWCR 4):

 

Applicant sustained an industrial injury to his neck, low back, left shoulder and headaches in 2004 and to his right shoulder in 2005.

 

The parties used an Agreed Medical Evaluator in Orthopedic Surgery who for the 2004 injury to applicant’s neck, low back, left shoulder and headaches precluded the applicant from a return to gainful employment. The physician added, even absent consideration of the 2005 date of injury, the 2004 injury had rendered applicant permanently totally disabled. The WCJ concluded that the medical evidence established that applicant’s permanent disability included a separate 2005 injury.

 

The Worker’s Compensation Judge ruled that the applicant sustained a 78% permanent partial disability for the 2004 injury and 51% permanent partial disability for the 2005 injury.

 

Applicant filed a petition for reconsideration arguing that the Agreed Medical Evaluator that the 2004 injury alone, precluded return to gainful employment and the 2005 date of injury was not a major factor in his overall permanent disability.

 

The WCJ in his report and recommendation changed his opinion and recommend that a finding of permanent total disability for the 2004 injury.

 

 

 

The WCAB initially granted reconsideration and overturned the trial decision. The WCAB rescinded the 78% finding in the 2004 injury case and entered a finding of permanent total disability. In addition, the panel stated that the permanent total disability finding in the 2004 case does not negate the award in the 2005 injury of 51% permanent partial disability, as that injury was to a body part that is not implicated in the award of 2004 industrial injury.

 

The Panel stated that the hundred percent cap on permanent disability is codified in Labor Code §4664(c)(1) as interpreted in the en banc decision in Sanchez the County of Los Angeles applied towards an excess of 100% to any one region of the body.

 

The panel reasoned that the second award was not for an injury to the same body region because there were two dates of injury and those injuries do not overlap, separate awards were justified.

 

Defendant filed a petition for reconsideration and the same panel disagreed with defendant’s contention that the two permanent disability awards violated Labor Code §4664(c)(1).  The Appeals Board saw no evidence in the record that the permanent disability for one body region exceeded 100%, and reasoning that Section 4664(c)(1) does not prohibit aggregate permanent disability award exceeding 100% where there is more than one injury.

 

Defendant had the burden to show that Labor Code §4664(c)(1) limited applicant’s entitlement to permanent disability benefits, but had not proved the overlap necessary to trigger Section 4664. Thus, the two separate awards were proper.

 

Defendant raised applicant’s stipulation in the 2015 hearing minutes that if permanent total disability were found as a result of the 2004 injury, he would not be entitled any permanent partial disability for the 2005 injury.

 

The panel concluded the language in the minutes did not find applicant to waive the 51% PD award for the 2005 injury.

 

The panel distinguish the instant case from Schapiro v. WCAB (49 CCC 579) (W/D) in which the parties were held bound by stipulation to waive their rights to appeal. The stipulation in Schapiro was supported by consideration by both parties, as they received an expeditious trial and determination of rights and liabilities. The present case there was no consideration given for the concession stated in the minutes of hearing

 

Accordingly, the panel denied defendant’s petition for reconsideration and affirmed its prior decision that applicant had sustained permanent total disability as a result of the 2004 injury and was entitled to an award of 51% partial disability for the 2005 injury.

 

According to the panel, defendant appeared in assuming that the hundred percent award was for injury to the upper extremities. A finding of total permanent disability in the 2004 case was based upon the combined effects of injuries to multiple regions of the body, his upper extremity being just one element of the award. To prove up the lifetime for permanent disability to the upper extremities, defendant would have to, but did not, establish that the permanent disability for the left shoulder from the 2004 injury combined with that 51% permanent disability for the right shoulder from the 2005 injury was 100% or greater.

 

City of Jackson v. WCAB (Rice) (Court of Appeal Published) (82 CCC 437) (45 CWCR 89):

 

The applicant was employed as a police officer.

 

The applicant sustained injury to his neck arising out of a course of employment has resulted in a continuous trauma injury and in April 22, 2009. That time the applicant was 29 years-old.

 

Before undergoing neck surgery, the applicant was examined by a Qualified Medical Evaluator. The Qualified Medical Evaluator found a cumulative injury as a consequence of repetitive bending and twisting his head.

 

The physician indicated X-rays showed degenerative disc disease. The physician diagnosed the applicant with cervical radiculopathy and cervical degenerative disc disease.

 

The physician found that applicant’s condition was caused by his (1) work activities for the city, (2) his prior work activities, (3) his personal activities, including prior injury and recreational activities, (4) his personal history, in which the physician included “heritability and genetics”. The physician apportioned 25% to each of the four factors.

 

The applicant and then had neck surgery.

 

Following the neck surgery, the Qualified Medical Evaluator re-evaluated the applicant. Her diagnosis was unchanged and the four causes contributing to the diagnosis remained unchanged.

 

The physician did change the apportionment.   The physician indicated since his last evaluation there were specific publications that have given even more support to causation of genomics/ genetics/heritable.  The physician listed three such studies and stated supported genomics as a significant causation factor in cervical spine disability. Her apportionment changed to 17% each to applicant’s employment with the city, previous employment, and personal activities, and personal activities, and 49% to his personal history, including genetic issues.

 

The physician in response to question from applicant’s attorney prepared a supplemental report in which she affirmed that she could state to a reasonable degree of medical probability that genetics has played a role in the applicant’s injury.  The physician stated that one of the studies said that heritability was 73% in the cervical spine.  Another article cited the role of heritability as 75%, and the other studies stated it was 73%. The physician then cited a study and claimed degeneration adults in may be explained up to 75% by genes along. The same study found environmental factors to contribute little or not at all. The physician stated while the study supported apportionment of 75% to personal history, she decided to air on the side of the patient in this case because there was some unknown “inherent weakness” in the study, decided that 49% was the “lowest level that could be reasonably be stated.” The physician stated that even without knowing the cause of applicant’s father’s back problems, the evidence of applicant’s degenerative disc disease having a predominant genetic cause was “fairly strong” where there is no clear traumatic injury as an applicant’s case.

 

The matter proceeded to trial and the WCJ found that the Qualified Medical Evaluator did not provide sufficient information to identify the nature of any cervical problems and how and why any such problems are related to applicant’s current level of disability. Accordingly, the WCJ concluded that the physician’s apportionment of 70% the prior work activities and 17% the prior activities was not based on substantial evidence. This conclusion is not part of the of the writ proceedings.

 

The WCJ found that defendant had met its burden of proof showing apportionment as the 49% attributable to genetic factors.

 

The applicant filed a petition for reconsideration.

 

The WCAB granted the petition for reconsideration and eventually ordered the matter returned to the trial level for non-apportioned award of permanent disability. The WCAB reasoned that finding causation on applicant’s genetics opens the door to apportionment of disability to impermissible imputable factors. Without proper apportionment to specific identifiable factors WCAB indicated they could not rely upon the determination of 49% applicant’s disability to non-industrial factors has not been based on substantial evidence.

 

A writ of review was only filed as to the 49% apportionment.

 

The Court of Appeal indicated they could find no impermissible apportionment and the WCAB’s prior apportionment decisions under similar circumstances supports validity of this statement.

 

The Court of Appeal indicated that since the enactment of SB 899 apportionment of permanent disability is based on causation, and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury. Apportionment may now be based on “other factors” that cause the disability, including the natural progression of nonindustrial condition or disease, pre-existing disability, or post-injury debilitating event, pathology, asymptomatic prior conditions, and retroactive for preclusions. (Escobedo, 70 CCC 604).

 

Precluding apportionment based on impermissible immutable factors would preclude apportionment based on the very factors that the legislature now permits, apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.

 

The WCAB ruling indicates that it believes that “genetics” is not a proper factor on which to base causation. However, since 2004 the WCAB has allowed apportionment based on such a factor, even though it may not have the term “genetics”.

 

The Court of Appeal cited the case of Kos v. WCAB (73 CCC 529) in which the WCAB reversed the WCJ and stated that in degenerative disease cases, it is incorrect to conclude that the worker’s permanent disability is necessarily entirely caused by the industrial injury without apportionment. In this case the Board had no trouble apportioning disability where the degenerative disc disease was caused by a pre-existing genetic predisposition. The medical evidence showed that the applicants prolonged sitting at work lit up her pre-existing disc disease.

 

 

The medical evaluator testified that the workers pre-existing genetic predisposition for degenerative disc disease would have contributed 75% to her overall level of disability.  The WCJ found no basis for apportionment and as set forth above WCAB reverse.

 

In the case of Escobedo, the WCJ apportioned 50% of the worker’s knee injury to non-industrial causation based on the medical evaluator’s opinion that the worker suffered from significant degenerative arthritis.  The WCAB stated the issue is whether an apportionment of permanent disability can be made based on pre-existing arthritis and applicant needs. The Board went on to state that apportionment can now be based on nonindustrial pathology, if it can be demonstrated by substantial medical evidence that the non-industrial pathology caused permanent disability. Thus, the pre-existing disability may arise from any source congenital, developmental, pathological or traumatic.

 

The Court of Appeal indicated they perceive no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.

 

The WCAB’s opinion stated that reliance upon applicant’s genetic makeup leads the physician to apportion the causation of applicant’s injury rather than apportionment of the extent of disability. The facts of this case do not support the Board’s legal conclusion. Labor Code §4663 provides for apportionment of permanent disability shall be based on causation. In Escobedo, the Board came to the obvious conclusion that causation in this context means causation of permanent disability. The Board stated that “the percentage to which an applicant’s injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury. While this might be true, the QME’s analysis was not mistaken in this case.

 

Disability as used in the worker’s compensation context includes two elements: actual incapacity to perform the tasks usually encountered in one’s employment and the weight loss resulting there from and physical impairment of the body that may or may not be incapacitating. Permanent disability is the irreversible residual of an injury and permanent disability payments are intended to compensate for physical loss and loss of earning capacity.

 

In this case the Qualified Medical Evaluator identified applicant’s disability is neck pain and left arm, hand and shoulder pain, which prevented him from sitting more than two hours per day, lifting more than 15 pounds and any vibratory activities such as long distances.

 

Applicant’s injury was a cumulative trauma injury which was not an exact or isolated injury, but which he believed was a consequence of repetitive motion primarily resulting from employment. Thus, the injury was repetitive motion. The physician did not include, as the Board apparently determined, that the repetitive motion was caused by genetics. Rather, the physician properly concluded that applicant’s disability, his debilitating neck, arm, hand and shoulder pain prevented him from performing his job activities, was caused only partially by his work activities, and was caused primarily by his genetics. Contrary to the Board’s opinion, the physician did not apportion causation to injury rather than disability.

 

The Court of Appeal went on to conclude that the Qualified Medical Evaluators report was based on substantial evidence.

 

The Court Appeal annulled the Board’s decision and remanded the matter for the Board to deny reconsideration. Petitioner was awarded costs.

 

Hikida v. Workers’ Compensation Appeals Board (Court of Appeal) (___CCC____)

 

The applicant was evaluated by an Agreed Medical Evaluator who found the applicant permanently and totally disabled from the labor market. The physician found her permanent total disability was due entirely to the effects of the CRPS that she developed as a result of the failed carpal tunnel surgery. He further concluded that petitioners carpal tunnel condition itself was 90% due to industrial factors and 10% nonindustrial factors.

 

The WCJ found permanent total disability that was 90% due to the industrial injury.

 

The applicant filed a petition for reconsideration arguing that he was 100% permanently disabled as a result of the industrial injury without apportionment because the disability derived from the medical treatment. In a two to one decision the WCAB affirmed the apportionment.

 

The Court of Appeal concluded that the WCAB erred in not awarding 100%, because the permanent disability resulted from Complex Regional Pain Syndrome that developed after applicant had surgery to treat her industrial carpal tunnel condition, and medical treatment for which the employer is responsible under Lab. Code 4600 is not subject to apportionment, notwithstanding the changed law of apportionment wrought by Senate Bill 899 in 2004 (Lab. Code 4663, 4664).

 

The Court of Appeal stated that under the changes made in 2004 to the apportionment law the disability arising from petitioner’s carpal tunnel syndrome would be apportionment between industrial and nonindustrial causes.  However, the applicant’s permanent total disability was not caused by her carpal tunnel condition, but by the CRPS resulting from the medical treatment her employer-provided.

 

The issue presented was whether an employer is responsible for both medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.

 

The Court of Appeal concluded that Labor Code §4600 requires the employer to provide all medical treatment reasonably required to cure or relieve the injured worker from the effects of the injury, even though the wording of this section has changed over the years, it has consistently been interpreted to require the employer to pay for all medical treatment once it has been established that an industrial injury contributed to the employees need for the treatment.

 

In the case of Granado (69 Cal.2d 399) the Supreme Court held that medical treatment is not apportionable.  If medical expenses reasonably necessary to relief from the industrial injury were apportionable, and injured worker would not be able to pay his share of the expenses and thus forgo the treatment.

 

It has also long been the rule that the aggravation of industrial injury or infliction of a new injury resulting from its treatment are examination are compensable.

 

The court went on to state there is no dispute that in this case the disabling carpal tunnel syndrome for which the applicant suffered was largely the result of her many years of clerical employment. It then follows that the employer was required to provide medical treatment to resolve the problems without apportionment.

 

The surgery went badly, leaving applicant with a permanent disabling condition, the CRPS, that will never be alleviated.

 

California workers compensation law relieves the employer liability for any negligence in the provision of medical treatment that led to the CRPS. It does not relieve the employer of the obligation to compensate the applicant for this disability without apportionment.

 

The courts review of the law and authorities convinces them that the new apportionment based on causation did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.

 

Long-standing rule that employers are responsible for all medical treatment necessitated in any part by an industrial injury, including new injuries resulting from the medical treatment, derived not from those statutes, but from (1) the concern that applying apportionment principles to medical care would delay and potentially prevent an injured employee from getting medical care; and (2) the fundamental proposition that workers compensation should cover all claims between the employee and employer arising from work-related injuries, leaving no potential for any independence sued for negligence against the employer.

 

Nothing in the 2004 legislation had any impact on the reasoning that has long supported the employer’s responsibility to compensate for medical treatment and the consequences of medical treatment without apportionment

 

Accordingly, the Court of Appeal found that the WCJ erred in apportioning the award and the Appeals Board of holding that decision. The decision of the Board was annulled.

 

The Court also addressed the timeliness of applicant’s petition for writ of review in the context of a supposed prior “final order” by the Board.  In a footnote, the Court stated that appellate “Courts should be cautious in finding a “threshold issue” where such finding will deprive a party of the right to an appeal.”

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.