WCDefenseCA

Welcome back, dear readers!  The fireworks are done, the fires are put out, and our Glorious Republic is still free from domination of Her Majesty’s government – having prevailed both in the war of 1812 and the British Invasion of the 1960s, not to mention watching the hotdog assert global domination over the banger.

So, perhaps we can turn now our attention to the business of workers’ compensation?  I bring to your attention the split panel decision of Dileva v. Northrop Grumman Systems Corp, recently denied review by the Court of Appeal.

The WCJ awarded applicant 96% permanent disability, based on three orthopedic injuries and the resulting psychiatric injury.  The AME for the orthopedic injuries apportioned among the three injuries, but the psyche primary treating physician did not, reasoning that the causation for the impairment from the three orthopedic injuries was inextricably intertwined.   The WCJ then relied on the psyche PTP’s opinions regarding apportionment, and issued one joint award for all three injuries, both for psyche and orthopedic PD.

Defendant argued that the psyche PTP’s opinion failed to properly address apportionment.  Shouldn’t, after all, the psyche apportionment trace the orthopedic apportionment, having been caused by the orthopedic injuries?

The majority reasoned that the burden of proving apportionment is on the defense, and found “it significant that the defendant did not avail itself of the dispute resolution process provided by [LC 4061(b)].”  Of interest to your humble blogger, the majority even cites LC 4061(i): “no issue relating to a dispute over the existence or extent of permanent impairment and limitations resulting from the injury may be the subject of a declaration of readiness to proceed unless there has first been a medical evaluation by a treating physician and by either an [AME or QME].”

The WCAB majority noted that since it was defendant’s DOR that set the matter for trial, and it did not object to or seek a second opinion on the psyche PTP’s opinions on apportionment, defendant was, in your humble blogger’s words, stuck – after all “sometimes you gotta dance with the one that brung you.”

But, look, defendant’s position in this case makes sense – the parties are more bound by the opinions of an AME than a PTP, and the AME here has opined to the causation of permanent disability as to the orthopedic injuries.  If the psyche injury is caused by the orthopedic injuries, what’s good for the proverbial goose, is perfectly good for the proverbial gander.  At the very least, there should have been apportionment as to the orthopedic injuries.

Not so, said the majority: “the percentage to which an applicant’s injury is casually 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.”

The dissent cited Labor Code section 4663(c), reasoning that the Labor Code requires a physician’s report to include an apportionment determination, and if the physician can’t include apportionment as part of the report, the physician must give the specific reasons why “the physician could not make a determination.”

Section 4663(c) requires the physician then to refer the case out to another physician that could make an apportionment determination.  As the psyche PTP found that he believes “it would be speculative to attempt to apportion the permanent psychiatric disability between the various injury dates” the proper course of action would have been for the psyche PTP to refer the matter out to another physician to render an apportionment opinion.

Needless to say, your humble blogger is not pleased with the result here.  Parties are regularly and strongly encouraged to use AMEs to expedite resolution of cases and to reduce the burden and backlog faced by QMEs and the medical unit.  Well, here, the parties relied on an orthopedic AME, only to have his opinions rejected in favor of a treating physician.

Furthermore, 4061 looks like it’s being reduced to a waiveable bases to object to a DOR – there was no AME or PQME in psyche, so why was this case allowed to proceed to trial?

The defense position, and what I gather from the panel opinion and dissent, the strategy, was not unreasonable – the medical record consisted of clashing opinions between a treating physician and an AME – the AME’s opinions, unless they’re fresh from the quacking-factory, should have prevailed at trial (not having read any of the actual reports, your humble blogger cannot comment on this last point in this case).  And, after all, you never know what another doctor is going to find – more impairment? More TTD? Perhaps a solid reason why there should be no apportionment at all?  It’s a risk, of course.

So what do you do if you don’t want to do get a panel or an AME but you’d like to knock the opinions of a PTP a bit more in your favor?  After all, with 96% PD on the line… that’s a lot of money.

What about a psyche 4050 exam, with a report by the 4050 psyche doctor to help you cross-examine the PTP at a depo?  Perhaps the PTP would even review and comment on the 4050 report and make it part of the medical record? Just a thought, dear readers.