RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – APPORTIONMENT AND PREEXISTING PATHOLOGY AND THE JOYS OF TELEPHONIC TRIALS

FROM MY BAR AT HOME:

COVID-19 soldiers on. But so do I, and still from home.

The two good things about telephonic hearings is that no one can see when your eyes roll hard into the back of your head or when you hit mute so that you can scream out in disbelief, “ARE YOU KIDDING ME?” at an opposing counsel’s argument, startling your husband and two kids who are doing their best to maintain “inside voices” while mommy works. That, and they also can’t see your weird candy pink at-home dye job that seemed like a fun quarantine idea, but that should have washed out weeks ago.

I was attending another telephonic trial. The rumors continue to swirl that video trials are just around the corner, but thankfully none have yet materialized, giving me time to at least think of a way to style said pink hair in a quasi-semi-professional manner. We are left to contend with a patchwork of varying approaches to trial depending upon venue and judge. Appearances remain voices in a telephone receiver, complicated by some practitioners who after all these months still have trouble remembering to mute their phones. Those same practitioners tend to have really vocal dogs.

My opposing counsel for today’s trial was my friend and frequent nemesis, Holly Hustler. She and I were unable to settle our case and hoped the judge would allow the trial to go forward on the record.

In our case, the applicant had suffered an admitted slip and fall. Our hapless applicant, a 55-year-old employee at a smoothie shop, slipped and fell on a banana peel his coworker carelessly discarded on the floor, injuring his right hip. The security footage confirmed that the applicant skidded across the floor with his arms waving like a cartoon character for a long stretch before ultimately landing on his side. The claim was admitted and after conservative treatment failed, the applicant underwent a right hip replacement surgery.

In my ardent investigation of the claim I discovered that this was not the applicant’s first hip injury. Amazingly, in my review of the applicant’s private medical records I found that he had injured his right hip several years earlier when he slipped on . . . a banana peel! Some people get struck by lightning twice, this guy had multiple fruit-related injuries to his right hip. What are the odds?

The panel QME (PQME) Dr. George Harambe rated the right hip based on the outcome from the replacement surgery using Table 17-34 of the AMA Guides to the Evaluation of Permanent Impairment, (Fifth Edition), aka the Guides, which rates the post-surgical hip on the basis of outcome. Because of the diagnostic evidence of prior injury and preexisting arthritis to the right hip, the doctor identified 40% non-industrial apportionment. The apportionment represented the primary dispute between Holly and myself.

Holly argued that because the applicant had undergone a hip replacement surgery necessitated by the industrial injury there should be no apportionment to non-industrial factors. In support of her argument Holly made use of the California Court of Appeal decision Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249.

In Hikida the applicant underwent carpal tunnel surgery which failed and resulted in chronic regional pain syndrome (CRPS), rendering the applicant permanently totally disabled. The Court of Appeal found that apportionment is not applicable when the impairment results from treatment for which the employer was responsible.

Holly argued that because the impairment to the hip was due to the surgery there should be no apportionment, despite evidence of pre-existing pathology which would typically be supported by Labor Code §4663.1

As a reminder, Labor Code §4663 reads 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.

Holly was of the opinion that even though Labor Code §4663 requires apportionment based on causation, there should be no apportionment because the impairment resulted from the surgery which was provided by the insured. Under Hikida, she argued, no apportionment was applicable in this scenario.

I don’t have a magic briefcase like Mr. Joe Truce, but I do have insomnia. I faithfully read the California Compensation Cases at night when I need a work comp bedtime story to help lull me to dreamland. Some of them can lead to nightmares, but others are soothing fairy tales. One of the happier tales I had recently read in the June 2020 edition was the Court of Appeal decision County of Santa Clara v. Workers’ Comp. Appeals Bd. (Justice), 49 Cal. App. 5th 605, and it was directly applicable to my dispute with Holly.2

In Justice the applicant had suffered an admitted injury to the left knee, which resulted in a compensable consequence to the right knee. The MRIs taken after the applicant’s injury showed preexisting degenerative arthritis and scars consistent with prior surgery.

The Agreed Medical Evaluator (AME) found that the applicant’s industrial injury “hasten[ed] the need for total knee replacement surgery.” Had there been no work injury at all, the applicant still would have had some impairment to their knees. The AME reasoned that 50% of the applicant’s impairment was due to the work injury and 50% due to preexisting factors.

In their decision, the Workers’ Compensation Judge (WCJ) wrote that while the AME’s determinations were sound, they felt that the holding in Hikida precluded apportionment. The decision was upheld on reconsideration, and defendants then filed a Petition for Writ of Review with the California Court of Appeal. The writ was granted.

In their discussion, the Court of Appeal found that the applicant’s injuries to the knees were distinguishable from the holding in Hikida because at least some of the applicant’s injury was due to pre-existing condition. In contrast, in Hikida the CRPS was entirely caused by the failed carpal tunnel surgery. Thus, the Court held in Justice that apportionment was mandated to the knees according the language of Labor Code §4663 and §4664 which prescribe that the employer “shall” be liable only for the percentage of permanent disability “directly caused” by industrial injury.

Holly and I presented our arguments and the WCJ for our trial told Holly that while she had a right to a trial, the apportionment issue was unlikely to go her way. By the end of our telephonic trial, Holly gave in and agreed to the very reasonable settlement offer I had made to her the day prior.

The distinction between the two cases focuses on the cause of impairment, and determination of which case would apply needs to be done on a case by case basis. In Hikida, CRPS was a new compensable consequence condition, caused by the treatment, which itself rendered the injured worker permanently totally disabled, without the need to consider impairment from the other injured parts of body, so no apportionment was given. In Justice, the injured worker’s compensable consequence knee already had degenerative factors, and the surgery itself did not cause a new compensable consequence condition caused solely by the treatment rendered, so apportionment to preexisting factors was allowed.

After we hung up, I made the short walk to my kitchen and my cocktail shaker, very much missing my good friends George and Kim. The months have worn on. And on. I make a better Manhattan (straight up, two cherries) than I did four months ago, but it’s not the same without the conversation at the bar.3

DISCLAIMER:

All characters at my home bar are fictional and the storyline is simply a product of my dynamic imagination.

In instances like this with a Court of Appeal decision, Joe would always draw my 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.”

We’re still making our own doubles for now and robustly washing our hands. May George guide my hand. Be well, friends.

1 Labor Code §4663 and changes to apportionment were discussed in an archive edition of George the Bartender from 2013 titled Re: George The Bartender And The Case Of Acme Steel Or How Labor Code §4663 Is Turning Down The Decibels Of The Compensable Consequence Argument, which is available on our website here.

2 A copy of Justice can be obtained via email request.

3 Legend has it that the Manhattan was invented by New York City socialite, Ms. Jennie Jerome, aka Lady Randolph Churchill, in the mid-19th century at a party for the newly elected Governor of New York, Samuel J. Tilden, held at the estimable gentleman’s club called the Manhattan Club. Debatable perhaps because at the time Lady Randolph was in fact in England and very much pregnant with one Sir Winston Churchill, but I digress.

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