Category Archives: Apportionment

Joint Degeneration and Age Discrimination

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Welcome back from the weekend, my dear readers.  It was a good to see you all attend the funeral pyre of California’s MPN, but one can only hope our next meeting will be under happier circumstances.

Today, your humble blogger brings you a different case, William Slagle v. Department of Corrections California Men’s Colony.  Applicant, a 65-year-old dental lab technician instructor, was evaluated by an Agreed Medical Evaluator for various injuries to various body parts, among them his right knee.  The AME found that 80% of the damage sustained by applicant’s knee was caused by his industrial injury, but 20% was caused by non-industrial degenerative changes.

During his deposition, the AME said “the degenerative findings in [applicant’s] knee are related to the fact that he’s 64 years old.  I don’t think it is unremarkable for a 64-year-old person to have some degenerative changes in their knee.”

Applicant’s counsel seized upon this to claim that the award, based on the AME’s opinions, constitutes illegal age-discrimination in violation of Government Code section 11135.  Needless to say, the WCJ was not impressed, and neither was the Workers’ Compensation Appeals Board.  The fact that applicant’s age makes the degeneration of his knees “unremarkable” is not age discrimination.

The Court of Appeal likewise denied applicant’s petition for a writ of review.

But, as a defense attorney, I can’t help but think about the other side of the coin.  Let’s say a 35 year-old applicant sustains the same type of injury and the Agreed Medical Evaluator notices some sort of degeneration on his knee.  The AME then concludes that it is “remarkable” to find that sort of degeneration on a person of that age, so the damage must be industrial.

In the Slagle case, the AME noted that the degeneration found just three months after the date of injury appeared to have been present since before the date of injury.  In the case of a 35 year-old, perhaps it would be appropriate to ask the same question: is it possible that this much degeneration would have occurred only since the date of injury?

Different Strokes for Different Folks

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In as much as you adore your humble blogger, one can only hope that you will forgive the pun in today’s blog post title.

Applicant suffered a stroke while working as a journeyman screen printer in the case of Francisco Amaya v. California Printed.  Mr. Amaya was given the job of printing thirty six flags and a deadline of 1:00p.m.  The trial evidence differed on whether he was assigned this task at 8:00 a.m., allowing for five hours, or at 9:30 a.m., allowing for three and a half hours.  In any case, because of the “stressful working condition” of having to make so many flags to print in so little time, applicant suffered a stroke.  Also contributing to the stroke was the fact that he had stepped on a spray can, causing him to fall to the ground.  Sounds pretty bad, no?

Well, some facts might clear this up.  Applicant suffered his stroke a little before 11:00 a.m., and at that time had completed six of his assigned thirty six flags.  So, that means that he had between 1.5 and three hours to print the six flags, leaving another 30 to be completed by 1:00 in the afternoon.  How many flags could YOU print in that short a time period? 10? 20?  Well, if you’re one of applicant’s co-workers, it would probably take you thirty minutes, which is what it took another employee who was assigned the remainder of Mr. Amaya’s workload.  Not so much of a “high pressure” situation any more, is it?

Also, what may have contributed to the stroke was the non-industrial and untreated “hypertension, hypercholesterolemia, and diabetes” which applicant had at the time of the stroke.

So, here is what the panel QME did with this case:

1)      He ordered a CT scan of applicant’s head, because head trauma “could have been a precipitating or enhancing factor.”  Without having seen the CT scan results, eh concluded that applicant’s stroke was caused by 25% industrial factors and 75% non-industrial factors.  When he later saw that the CT scan showed no head trauma, he declined to change his opinion.

2)      He also found that his stroke could have been a reaction to stepping on a spray can, but if he did not step on the spray can, the PQME would not change his opinion.

Here is how your skeptical blogger reads these facts: “well, I’m not going to let these facts let this guy walk away from this thing empty-handed.”

The defense argued that the PQME’s opinions do not constitute substantial medical evidence – this lunacy of a medical opinion does not justify its findings and seems unmoved by any shifting facts.  So, what do you think the Workers’ Compensation Judge did with this?

The WCJ threw it out of her courtroom!  She found that the PQME “did not explain the bases for his opinion that Applicant’s work activities … constituted 20-25% of the causation of the stroke, irrespective of the pace at which Mr. Amaya was required to work.”  The injury was ruled non-compensable, and applicant’s request to take a second bite at the apple further develop the record was denied as the PQME “has been given ample opportunity, through the deposition process, to provide support for his opinions… [he] has not provided the necessary support, and … further discovery such as another deposition is not likely to yield a properly supported opinion.”

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration and incorporated the WCJ’s report.

Curious about this Northern California PQME who hands out causation like it’s candy?  Please shoot me an e-mail for the panel opinion: gregory@grinberglawoffice.com

Permanent Total Disability for Non-Industrial Causes

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California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity.  Otherwise, “permanent total disability shall be determined in accordance with the fact.”

Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer.  However, applicant’s attorneys have a more “equitable” use for this section.

In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist.  The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.

Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault.  (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)

The WCJ, however, saw it differently:

“we all come to the job market with innate limitations.  It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for.  It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled.  If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”

The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.

Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English.  Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”

The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.

To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.

In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied).  We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.

Court of Appeal Stands Up for the Law

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On November 10, 2011, the sun dawned on a very different California.  The air smelled the same, the food tasted the same, but there was something different.  That difference was the sound that filled the atmosphere – the sound of the Court of Appeal standing firm for the law, as it was written, and consequentially for employers and insurers across the state.

In its November 10, 2011 unpublished decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (James Dorsett) (which was subsequently ordered published, thanks to the efforts of the California Workers’ Compensation Institute) the Court of Appeal ruled that Labor Code sections 4663 and 4664 applied to the case at hand.

The facts are fairly straight forward – applicant glazier allegedly sustained an injury to the cervical spine in 2000 while working for employer A; and then allegedly sustained a cumulative trauma injury over the period of November, 2002 through June, 2004 while working for employer B.  Both employers were insured by State Compensation Insurance Fund.

The agreed medical evaluator opined that, although there are two injuries, the cumulative trauma was a compensable consequence of the specific injury, and the two injuries are inextricably intertwined.  However, during his deposition, the AME testified that he would apportion the level of applicant’s disability 50-50 between the two injuries.

The matter proceeded to trial and the Workers’ Compensation Judge awarded application 100% disability, reasoning that the two injuries could not be parsed out, presenting just one single injury.  Therefore, no apportionment applied.

Defendant SCIF petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that an injury could not both be a compensable consequence and a separate injury, and that the Labor Code required apportionment in this case.

The WCAB denied defendant’s petition.

Declining to give into discouragement, defendant then petitioned the Court of Appeal for a writ of review.

The Court of Appeal, in granting defendant’s petition, reasoned that if the doctor can “parcel out the causation of disability,” then separate injuries must be apportioned, even if they become permanent and stationary on the same date.

In this case, the AME testified to a 50-50 split in causation between the two injuries, satisfying defendant’s burden of proving apportionment.

Your modest blogger is an admitted cynic – but it’s mornings like these that irresistibly inject a bit of optimism into everyday life.

Employer as Nanny

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I hope my dear readers had a wonderful Thanksgiving.  I wish I had a great decision to show you on this welcome-back-to-work morning.  But, sadly, all I have for you is more pocket-picking of a California employer.

The Court of Appeal recently declined to review the decimation of Bridgestone Firestone in the case of Bridgestone Firestone v. Workers’ Compensation Appeals Board (Ronald Fussell).

Applicant, a diabetic, was a territory manager for defendant-employer when he sustained an industrial injury to the left ankle.  Following two surgeries and the use of a custom ankle brace, applicant eventually returned to work, only to have his condition worsen.  Ultimately, applicant underwent an amputation of his left leg below the knee.

The Workers’ Compensation Judge found applicant to be 100% disabled, and awarded over $220,000 in attorneys fees to his attorney, and COLA payments beginning in 2004 (the WCJ’s award predates the Supreme Court decision on proper calculation of cost of living adjustments).  In doing so, the WCJ rejected the opinion of the treating physician that 40% of the disability was caused by applicant’s “non-industrial non-compliance with activities of daily living …  non-compliance has every thing to do with choices that the patient makes on his own, despite knowing that he is not following the doctor’s recommendations.”

The basis for this rejection was applicant’s testimony that, because he lived in a second-floor apartment and there was no elevator, he had to “hop” on crutches to get up the stairs, and could only use the doctor-recommended wheel chair while actually in the apartment.  The WCJ reasoned that the defendant could have built an elevator for applicant or, in the alternative, relocated applicant.  Therefore, it was all defendant’s fault and no apportionment is called for.

I suppose the image of a cackling adjuster comes to mind, smoking a cigar and smiling sinisterly at the thought of the poor applicant not being able to effectively use his medical equipment.  The more likely scenario, of course, is that applicant said nothing to his doctors, employer or the adjuster until it was too late.  There was likely never an opportunity for defendant to act, because there was no knowledge of a need to act.

Medical apportionment based on applicant’s pre-existing diabetes was likewise rejected, on the grounds that applicant had never sustained trauma to his left ankle before the industrial injury that was the subject of this case.  The opinions of applicant’s treating physicians, concluding that the diabetes had slowed the post-surgical recovery process, did not sway the WCJ or the WCAB.

Before defendant could blink, a simple left ankle injury resulted in an amputation and a 100% PD award.  The only parting advice I could offer from this case is to obtain accurate living conditions information from the applicant, such as where he lives and his domestic set-up.  This can be done through a deposition or through a written questionnaire (although a deposition is preferable).

With this information, it is possible to keep the treating physicians apprised of whether their recommendations are feasible given the applicant’s circumstances.

Correctional Officer Heart Presumption Rebutted? You-betcha!

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Labor Code section 3212.2 creates a presumption of industrial causation for corrections officers who, sustaining an injury to the heart (or “heart trouble”), have the injuries develop or manifest themselves during employment, or, in some cases, up to 5 years later.

But, practically speaking, is this presumption ever rebutted?  Is it possible an evaluating physician will conclude the heart trouble developed or manifested itself before applicant began working for the Department of Corrections?  After all, we’ve seen an industrial award to a sheriff’s deputy under section 3212.5 for a congenital heart defect.

The answer, apparently, is yes.  I respectfully direct your attention to the writ denied case of Michael Yubeta v. Workers’ Compensation Appeals Board. [Forgive your humble author his “you-betcha” puns.  Just give a polite smile and keep reading.]

Applicant corrections officer (the penal kind, not grammar), filed a claim for heart disease after thirteen years of employment by the Department of Corrections and Rehabilitation.  The parties agreed to a medical evaluator who, after evaluating applicant, diagnosed him with cardiovascular disease and coronary heart disease.

However, following a thorough review of the records (possibly guided by a well drafted letter), the AME found the cardiovascular disease to have manifested itself before applicant began working for the DOC.

Therefore, reasoned the AME, the public safety officer presumption of section 3212.2 does not apply, and 85% of the impairment should be apportioned to non-industrial causes.  The other impairments, including the psyche claim, went as these things normally do.

Did applicant petition for reconsideration?  Yubet[ch]a!

In his report and recommendation that applicant’s petition be denied, the Workers’ Compensation Judge argued that the designation of an agreed medical evaluator reflects a recognition from the parties of the evaluator’s competence and impartiality.

Given this, the WCJ’s report continued, “[t]he question of when a disease process develops and manifests itself was a question of medical fact within the expertise of” the AME.  As the AME found, the hypertension “develope[d] and manifest[ed] itself” before applicant became a correctional officer employed by the State.

The Workers’ Compensation Appeals Board denied applicant’s petition for reconsideration, adopting and incorporating the WCJ’s report.  The Court of Appeal denied applicant’s writ of review.

Are §§ 4663 and 4664 Mutually Exclusive?

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Is it possible that the California Legislature, in enacting Labor Code §§ 4663 and 4664, intended for them to be mutually exclusive?  I don’t think so.  In fact, not only did the thought never cross my mind that the two couldn’t be applied in the same case, I never thought the Legislature would limit a defendant’s options to a choice between the two when the two could both easily exist in one case.

Then, I read Robinson v. Workers’ Compensation Appeals Board, a writ denied case.

The skinny:  §§ 4663 and 4664 can both be applied in the same case.

[Just a note – before you begin raining abuse upon your humble author for wasting your time with the obvious, with all due contrition I point out that common sense has consistently proven a weak source of authority in California Workers’ Compensation practice; and even a Writ Denied case from the Court of Appeal places an iron fist within the velvet glove of basic reading comprehension.]

In Robinson, the Workers’ Compensation Judge applied § 4663, apportioning some of applicant’s impairment to non-industrial causation, and also applied § 4664, apportioning some of applicant’s impairment to his prior award from 2004.

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that the legislature did not intend for §§ 4663 and 4664 to be applied to the same case.  The WCAB’s answer?  “[w]e see nothing in the language of the statutes or in their legislative purpose to support such a conclusion.”

The WCAB continued, citing Brodie v. WCAB to hold that impairment must be parceled out into (1) non-industrial causation (§ 4663); (2) prior industrial causation (§ 4664); and (3) current industrial causation.

[Even part (3), current industrial causation, should be parceled out into the various injuries (specific vs. cumulative trauma, multiple specific injuries, or multiple cumulative traumas).  This issue is discussed in a prior post.]

Applicant’s petition for a writ of review was denied by the Court of Appeals.

Of Broken Hearts and Broken Statutory Interpretation

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A recent Workers’ Compensation Appeals Board opinion, Karges v. Siskiyou County Sheriff, touched on the issue of the law enforcement officer’s presumption regarding heart disease.

The applicant, who worked as a deputy sheriff for over seven years, was diagnosed with atrial fibrillation following a life insurance examination.

Labor Code § 3212.5 allows for law enforcement officers’ heart trouble or pneumonia to be regarded as an industrial injury.  The section provides a presumption of industrial causation, so long as the employee worked for more than five years before the presumption arises.

At trial, the Workers’ Compensation Judge found no injury to the circulatory system, but instead found an injury to the heart.  Defendant petitioned for reconsideration of this finding, arguing the heart disease was congenital.

The WCJ in this case found the issue to turn on the definition of the word “disease,” as found in § 3212.5 (“[s]uch heart trouble … shall in no case be attributed to any disease existing prior to … manifestation.”  Ultimately, the WCJ reasoned that the Labor Code intended to cover, as a “disease,” those conditions with which the applicant was born.

Naturally, your humble author disagrees with this reasoning – Labor Code § 4663 clearly states that “[a]pportionment of permanent disability shall be based on causation.”  In this case, it would appear that the two code sections, to some extent, conflict.  The natural course of action is to interpret them in such a way as to NOT conflict.  This would necessitate interpreting “disease” as to not including any congenital conditions.

Furthermore, Labor Code § 3212.5 was last amended in 1976, whereas Labor Code § 4663 was last amended in 2006.  If, as the WCJ states, the judges are required to apply the “usual rules of statutory interpretation,” then the more recent action of the legislature is the best expression of legislative intent.  Therefore, § 4663, in the event of any conflict, should supersede § 3212.5.

It does not appear that this case is to be appealed, but hopefully the next time this issue comes up the answer will be more favorable to the defense community.

On Benson (Part II)

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Yesterday we discussed the use of the Benson decision and how we can break up large permanent disability ratings into smaller (and cheaper) ones.

But what about large periods of cumulative trauma?

Well, look to see if there were any gaps in the cumulative trauma or any periods of disability dotting the timeline of alleged disability.

In the case of Ferguson v. WCAB (1970) 35 CCC 452, the applicant claimed a cumulative trauma, but had a period of disability in the middle of the timeline for which he was off work.  The Board held that, under Labor Code § 3208.2, the applicant actually sustained three injuries:

(1)    A cumulative trauma ending at the time of the specific injury;

(2)    A specific injury

(3)    A cumulative trauma beginning after the applicant returned from disability for the specific injury, and ending with the last day worked.

If you’re faced with a long period of cumulative trauma, try to look for periods of disability.  A theory with some potential, one which I’m not aware of having been tried yet, is to argue that periods off work for non-industrial injuries should serve to break up cumulative trauma into separate injuries as well, akin to the specific injury in Ferguson.

Once you use Ferguson and § 3208.2 to effectively break up the single cumulative trauma into several little ones, write to the Qualified or Agreed Medical Evaluator requesting that each injury be given its own rating under Benson (Benson v. WCAB (2009) 170 Cal.App.4th 1535) and Labor Code § 4663.

Remember, permanent disability indemnity goes up drastically as you climb the impairment ladder.  One of the best ways to bring that impairment number down (as well as the amount the applicant will eventually be entitled to) is by breaking the whole impairment into its individual parts.

Good hunting!

When you believe in magic (and § 4663)

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Sally the secretary, while seated at her desk, bends over to pick up a file.  Hearing a pop in the back and immediately feeling pain, she then undergoes a series of treatments, including laminectomy and fusion on the L4-5 discs.  Since this is a pre-2005 injury, at high noon, the dueling Qualified Medical Evaluators meet to settle their sides’ differences.

Applicant QME’s weapon of choice?  The standard go-to: 100% industrial causation, no apportionment.

Defendant’s QME answers with a 70% non-industrial causation – Sally’s multilevel degenerative disc disease and degenerative scoliosis.

Of course, Sally argues that (1) there is no prior award; and (2) she was, as she says, asymptomatic before her industrial injury.  So why should there be any apportionment at all?

Defendant had nothing to rely on at all, except some vague and generally rejected reference to the Labor Code.

Whose shot proved the truest?  Well, the answer to that depends on who you ask.  The WCJ issued a Finding and Award based on applicant’s QME’s opinion, finding 100% industrial causation.  The Appeals Board saw it differently…

Relying on Labor Code § 4663, the Appeals Board sided with defendant in this case, saying the law is the law, and no symptoms need have existed prior to the industrial injury.   Applicant’s writ of review was denied.

It just goes to show you – sometimes it really is worth it to go through the recon process.   When the case comes out on Lexis, take a look for yourself:  Frances LaRue v. Workers’ Compensation Appeals Board, State Compensation Insurance Fund.