Apportionment

Viray v. Pacific Gas & Electric (BPD) (45 CWCR 238):

Applicant alleged a cumulative trauma injury through March 1, 2011 to is cervical spine, lumbar spine and psyche.  The parties agreed to an Agreed Medical Evaluator for the psychiatric portion of the case.

The Agreed Medical Evaluator apportioned psychiatric disability 70% to industrial causes and 30% to pre-existing or nonindustrial factors.

The parties used an orthopedic Qualified Medical Evaluator who found the applicant’s cervical spine permanent disability was 80% industrial and 20% caused by a prior industrial injury to his upper extremities.

The WCJ rejected the reporting physician’s permanent disability determination, ruling the applicant had successfully rebutted the scheduled ratings, and that: (a) his overall condition after this injury was one of permanent total disability in accordance with facts pursuant to Labor Code 4662 (b).   The WCJ also found that the evaluating physician’s apportionment was substantial evidence.

The WCJ, rather than applying the apportionment of the applicant’s psychiatric and orthopedic disabilities separately to reach the applicant’s permanent disability award, concluded that he had authority to apportion according to the range of evidence.  Because the orthopedic apportion was 80% and the psychiatric was 70%, WCJ split the difference and concluded that applicant’s award after apportionment was 75%.

The WCJ did not cite the source of his authority to apportion based on a range of evidence that supersedes the findings of the AME and QME.

Applicant filed Petition for Reconsideration contending that the medical evidence supported 100% permanent disability award without apportionment.

The WCAB granted reconsideration and rescinded the WCJ’s finding on apportionment.

The panel, after noting a problem with the lack of any reports by applicant’s vocational expert, listed as exhibits, in EAMS, the panel expressed substantial concerns with the apportionment finding.

The WCAB suggested the WCJ should have applied the differing percentage of apportionment in the calculation of the applicant’s PD award.  The panel concluded there was no legal support for the WCJ’s range of evidence methodology.

While the Appeals Board recognized the WCJ was attempting to fashion a result that provided applicant with a fair award, the Appeals Board concluded the apportionment analysis was nevertheless not made in accordance with Labor Code §4663, which requires that apportionment determination be made by the reporting physicians, not the WCJ.

The Appeals Board further concluded that the orthopedic QME found apportionment to the neck based on overlapping pain from the upper extremity while the psychiatric AME apportioned to factors such as nonindustrial vision loss and a relocation of applicant’s family to the Philippines. The panel concluded that these two sources of apportionment could not be combined and split.

The Appeals Board stated there was no evidence of a connection between the nonindustrial and pre-existing factors a psychiatric in orthopedic disability.

Finally, because there was no evidence offered of a prior PD award, the WCAB ruled that the WCJ could not properly apply apportionment pursuant to Labor Code §4664 and thus did not address the issue of overlap of permanent disability from a prior industrial injury because the lack of evidence.

Accordingly, the Board panel rescinded the decision and returned the matter to the trial level encouraging referral to the DEU for formal ratings and for a final decision.

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 found 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 that, 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 Workers’ Compensation Judge ruled that the applicant sustained 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 found that the 2004 injury alone precluded return to gainful employment and that 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 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 did not negate the award in the 2005 injury of 51% permanent partial disability, as that injury was to a body part that was not implicated in the award of 2004 industrial injury.

The panel stated that the 100% cap on permanent disability as codified in Labor Code §4664 (c) (1), as interpreted in the en banc decision in Sanchez v. 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 reasoned that §4664(c)(1) does not prohibit aggregate permanent disability awards 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 §4664. Thus, the two separate awards are proper.

Defendant raised applicant’s concession 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 that the language in the Minutes did not waive the 51% PD award for the 2005 injury.

The panel distinguished the instant case from Schapiro v. WCAB (49 C.C.C. 579) (W/D) in which the parties were held bound by a stipulation to waive their right to appeal. In Shapiro, the stipulation was supported by consideration by both parties, as they received an expeditious trial and determination of rights and liabilities. In 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 to assume 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 cap 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.

Foxworthy v. WCAB (W/D) (82 CCC 1192)

Applicant was evaluated by 3 AME’s in orthopedics, psychiatry in internal medicine. Evaluators found the applicant suffered impairment to the body parts they evaluated, with 13% WPI attributable to the lumbar spine with a 3% add-on for pain, 20% attributable to the psychiatric system, and 15% WPI for the hypertension.

The orthopedic AME opined the combined value chart should be used to combine the disability because the impairments did not overlap. The other two Agreed Medical Evaluators did not believe the use of the combined value chart provided an accurate measure of applicant’s combined impairment.

The WCJ issued a decision finding 71% permanent disability after apportionment based on the use of multiple disability table.

Defendant filed a petition for reconsideration arguing the judge should have used the combined value chart not the MDT and the opinions of the two AME’s are not sufficient to justify departure from the combined value chart because applicant’s disabilities did not overlap and the report of the orthopedic Agreed Medical Evaluator constituted substantial evidence that the combined value chart should be used to combine the disability.

Applicant filed a petition for reconsideration on the apportionment issue.

The WCJ in his report admitted he should not use the MDT and stated that adding applicant’s disabilities, which would produce a rating of 92%, was the appropriate method of rating the applicant’s disability. The WCJ rejected use of the combined value chart is an appropriate method of calculating the permanent disability based on the findings there was no overlap or no redundancy between applicant’s various impairments and the applicant’s overall disability was less than 100%.

The WCAB granted reconsideration in a split decision and affirmed the WCJ’s finding on apportionment, but determined the WCJ should have used the combined value chart to determine applicant’s overall level of disability. The WCAB calculated applicant’s overall level of disability at 76% using the combined value chart and amended the WCAB’s decision.

The WCAB first found no basis to use the MDT to combine applicant’s disabilities because the 2005 PDRS was applicable to this case.

The WCAB went on to state that the 2005 PDRS which is prima facie evidence of permanent disability pursuant to Labor Code §4660 (c), was applicable to applicant’s injury and the schedule contains a combined value chart for combining impairments and disabilities that is based on the AMA guides.

While the WCAB recognized that the combined value chart as a guide to determining overall impairment or disability when multiple injuries are involved, the WCAB explained that the combined value chart should be used unless there is evidence that another method of combining impairments, such as adding them, produces a more accurate reading.

In this case the WCAB panel relied on the opinion of the orthopedic agreed medical evaluator indicating that the use of the combined value chart was justified and found no substantial evidence to rebut use of the combined value chart to combine applicant’s disabilities.

The WCAB went on to state that the combined value chart is a guide, but it should ordinarily be applied unless there is some overriding reason to use a different method of accounting for multiple impairments.

Although a permanent disability rating based on the 2005 PDRS can be rebutted, there has been no showing of a reason not to use the combined value chart to calculate applicant’s permanent disability in this case.

They found the report of the Agreed Medical Evaluator in orthopedic surgery to be the most persuasive in this regard. That report opines that the combined value chart should be applied to determine applicant’s overall permanent disability.

The WCAB discusses the rationale set forth by the physician for application of the combined value chart to most accurately reflect applicant’s disability, and accepted as substantial evidence his conclusion regarding the lack of a synergistic effect among applicant’s internal, sexual dysfunction, psychiatry and orthopedic injuries.

The WCAB noted that, contrary to the WCJ’s reasoning, reporting of the orthopedic agreed medical examiner supported a finding that there was overlap in this case between applicant’s orthopedic restrictions regarding her ability to lift and carry and in her psychiatric impairments in interacting and communicating, as these restrictions would both affect applicant’s ability to perform her former job and engage in rescue activities with her coworkers as she did when she was injured.

Furthermore, the WCAB pointed out once an injured worker has an impairment in one body system that injured worker no longer has 100% of her abilities, but something lesser and the combined value chart takes this factor into account.

The dissenting Commissioner agreed with the WCJ that the most accurate description of applicant’s overall disability was achieved by adding each disability together. According to the dissenting Commissioner the opinions of the 3 AM knees in this case confirmed that there was no overlap or redundancy in the impairments to applicant’s lumbar, psychiatric, internal and sexual symptoms because each impairment in these four separate body regions impacted applicant differently. Consequently, the Commissioner concluded that application of the combined value chart did not produce an accurate reflection of applicant’s true residual disability, but instead diminished it.

Applicants petition for reconsideration on apportionment was denied and that issue is not being discussed in this summary.

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