Apportionment

FROM THE LOBBY BAR AT THE HYATT:

After a long day at the office I passed through an eerie fog that had just rolled into the city, making my way in my black cat costume to the comfort and safety of the Lobby Bar, where I found your friend and mine, Mr. Joe Truce, sitting amongst a smattering of cobwebs and jack-o-lantern lights. The bar was fully decked out for Halloween, however Joe was dressed up in a full suit and tie. He was of course enjoying his favorite libation, a Beefeaters martini, straight up with two olives.² Since his retirement he has had more time to spend with his friend Kim, the breathtakingly beautiful cocktail waitress, who was decked out tonight in a Rosie the Riveter costume.

As I reached the bar I noticed that Joe was also wearing a name tag near his pocket square that read “Hello My Name is PERRY.” Taking a seat next to him, I ordered my own tipple of choice, a WhistlePig rye Manhattan.³ I complimented him on his choice of costume, which I guessed correctly as famed 1960’s television criminal defense counselor, Perry Mason. We were making pleasant small talk over our respective cocktails when the infamous applicant attorney, Ron Summers, appeared in a priest costume with his lips curled into a smug smile. Joe and I exchanged an eye roll and braced ourselves for whatever obnoxious tale Ron was certainly going to bore us with.

It turns out that Ron had just come from what he deemed a successful cross examination of the Agreed Medical Evaluator (AME) in a contentious left knee case. His client had a prior Stipulated Award for the same part of his body only a few years earlier and despite the prior injury, Ron had convinced the AME, Dr. Alexei Orthopedavich, on cross examination not to grant any apportionment. The doctor had acquiesced to Ron’s pushing, testifying that the prior knee injury did increase the applicant’s risk for subsequent injuries to that part of body but that no apportionment would be appropriate because the current injury was not caused by the prior injuries to the left knee.

It was then, loyal Lobby Bar patron, that I saw a sparkle appear in Joe’s eye and I knew what was about to follow. He was about to ruin Ron’s day! Joe pulled out his trusty briefcase (retirement can’t stop a dedicated practitioner like Mr. Truce) and handed Ron a copy of the Workers’ Compensation Appeals Board panel decision Jose Nieves v. City of Hayward 2018 Cal. Wrk. Comp. P.D. LEXIS 512.⁴

In Nieves, the applicant suffered a cumulative trauma ending on August 30, 2012 to their left ankle, low back, neck, and right shoulder, and claims to have sustained injury to their left shoulder, right arm, cervical spine, right forearm, and a hernia. He had suffered a prior industrial hernia injury in 2004 which resulted in a need for surgical repair and ultimately a Stipulated Award for 15% permanent disability (PD).

The AME in orthopedics found no basis for apportionment. The AME in internal medicine similarly did not find any basis for apportionment under California Labor Code §4663, but did identify that the prior hernias represented “risk factors” for subsequent hernias. Labor Code §4663 states in relevant part as follows:

(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury.

At trial for the most recent injury, the Workers’ Compensation Judge (WCJ) determined that 15% of the applicant’s PD was apportionable to the prior Stipulated Award under Labor Code Section §4664(b), despite the opinion of the AMEs that no apportionment was appropriate.

The applicant petitioned for reconsideration, arguing in part that the partial apportionment was not supported and defendants had failed to prove sufficient overlap between the prior and the current hernia. They contended that their evidence supported a rating of total permanent disability.

Reconsideration was granted but the Appeals Board affirmed the original Award, relying on Labor Code §4664(b). The Appeals Board found that the defendant needed to only establish the existence of a prior Award and overlap between the former and current injuries. Because the internal AME had identified that the prior hernias made the current hernia more likely and the hernias were of the same type, overlap was adequately supported. The applicant appealed via a Petition for Writ of Review, but it was denied.

Labor Code §4664 reads in relevant part as follows:

(b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.

Joe then reminded Ron that there are two avenues for apportionment that defendants can rely upon – Labor Code §4663 and §4664 – which updated the Labor Code, along with the other sweeping changes of California Senate Bill 899 passed on April 19, 2004.

Joe added that in the 2004 reforms, Labor Code §4663 was modified to allow for apportionment to causation, which was further clarified in the Workers’ Compensation Appeals Board’s en banc decision, Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, which deals with causation of disability. The new Labor Code §4663 would now allow for apportionment based on both prior industrial and non-industrial factors and injuries, including pathology and conditions which were previously asymptomatic so long as they impact the current level of disability. The burden lies on defendants to prove the apportionment via substantial medical evidence, which must comment upon the causation of the PD and the approximate percentage of PD caused by the injury.⁵

Joe’s musings about Labor Code §4663 & §4664 reminded me of another relevant decision, Ed Kopping v. Workers’ Comp. Appeals Board (2006) 142 Cal. App.4th 1099, which explored how §4664 would be applied. I told Ron that it determined that defendants carry the burden to establish that there was a prior Award and overlap between the prior and current injuries. Once that burden has been met it is presumed that the applicant still has the same level of PD from the prior injury when the second injury occurs.

Joe confirmed to Ron that Nieves had affirmed this presumption, even in the absence of a finding of apportionment by the medical-legal physician.

DEFENDANT’S BURDEN IN ESTABLISHING OVERLAP & PRESUMPTION:

At this point a stunned Ron contended that he would attempt to argue that the defendant in his case didn’t establish that the applicant’s current injury overlapped with their prior injury.

I pointed out to Joe that Ron made a good point. Practitioners should be watchful that the presumption only applies once overlap is established. It is not sufficient to point to a prior Award listing the same part of body, as defendants learned in a recent panel decision, Javier Lopez v. Sturtevant Farms, State Compensation Insurance Fund, 84 Cal. Comp. Cases 433, 2018.⁶ I told Joe that in that case, defendant’s efforts to establish the necessary overlap were not successful because they failed to show the connection between the prior and the current injury.

In Lopez, the applicant suffered a June 7, 2013 injury to the corticospinal tract, bladder and psyche. The parties stipulated at trial that before apportionment the applicant was 100% PD based on the opinion of the chiropractic panel qualified medical examiner (PQME), Dr. Talan. The applicant had a prior 2006 Award for 28% PD that defendants argued should provide a basis for apportionment against the current PD rating and Award either via Labor Code §4664 or §4663.

Dr. Talan had apportioned 5% of the applicant’s current impairment to the prior Award based on the reporting of the physician in that case, Dr. Newton, which reflected injury consistent with 5% whole person impairment to the lumbar spine under the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides. The prior case had been rated under the older Permanent Disability Rating Schedule, but Dr. Talan had interpreted the prior reporting to be consistent with a diagnosis related estimates (DRE) II under the Guides.

Despite the apportionment determinations made by the PQME, the applicant received an unapportioned 100% Award. The defendant requested reconsideration, but were not successful as the Appeals Board affirmed the original Award, agreeing with the WCJ that the defendant failed to properly establish overlap between the prior lumbar spine injury and the current corticospinal tract injury, causing their arguments for apportionment under both Labor Code Section §4663 and §4664 to fail.

I told Ron and Joe that it does not appear the defense in Lopez presented any evidence that made it seem that the current injury was in any way influenced by the prior injury, other than the efforts made by the current PQME to rate the prior injury. The current 2013 injury had impacted completely different body systems than the prior injury, including the bladder and with radiation to the hips.

Joe then asked Ron if the medical records from the prior date of injury mirrored the current in his case. A red-faced Ron confirmed that they did – they established that the applicant’s prior injury was in the form of a meniscal tear, which was the same as the current injury. Joe warned the irritated Ron that going to trial on the apportionment issue would likely not be a good use of his time. Although Ron’s friendly AME had failed to apportion under Labor Code §4663, defendants had already established all that is required to take advantage of the presumption in Labor Code §4664.

Finishing my Manhattan, I decided to head home, feeling happier than when I had arrived at the Lobby Bar.

DISCLAIMER:

All characters at the Lobby Bar aside from Joe, George, Kim and I are fictional and the storyline is simply a product of my vibrant imagination.

Nieves and Lopez demonstrate to defendants the importance of leaving behind a good record in the event of a subsequent injury, particularly if the applicant continues to be employed with the same insured. Including rating strings within the settlement documents and referencing the medical reports upon which the settlement was based can be helpful years later in the event of a subsequent date of injury.

These cases also remind the parties that the final opinion of the medical-legal doctors only matters to the extent that their reporting taken as a whole also supports their conclusions. The medical-legal physicians both issued findings which were at odds with what was ultimately found at trial with regard to apportionment. Whether a doctor issues a medical opinion which is or is not in your favor, it is most important to look to the substance of what is being reported in the context of the other evidence in the case.

While these decisions lack the designation “significant panel decisions,” Joe always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703 (g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

Make mine a double, George.