WCDefenseCA

Happy Wednesday dear readers!

Well, perhaps not so happy… nothing ruins your humble blogger’s day than reading about yet another apportionment finding by a QME being rejected by the WCAB. 

The case is that of Monter v. Randstad North America, Inc., a WCAB panel decision.  The parties proceeded to trial based on the opinion of an AME, who found 50% apportionment to non-industrial factors.  The AME opined that “50% of the impairment/disability is due to factors before the industrial injury such as lumbarization of the first sacral segment.”  On appeal, applicant argued that the opinions on apportionment was not substantial medical evidence, and sought a finding of 14% PD instead.

The WCAB granted reconsideration and substituted a finding of 14% as sought by applicant.  The reasoning given was that the AME did not “explain the nature of those factors” and “did not explain how and why those factors were causing permanent disability at the time of the evaluation” nor “how and why those factors are responsible for 50% of applicant’s disability.” 

There is nothing new or groundbreaking in the notion that proving apportionment, especially under Labor Code section 4663 is defendant’s burden.  However, the AME did point out the cause of the permanent disability and, more importantly, this is an AME!  An AME’s opinions are typical given significant weight, but not in this case.

Let us be reminded then, as the Monter panel points out, what we need to elicit to support an opinion on apportionment:

1. Specifically discuss the factors causing permanent disability, particularly those besides the current industrial injury;
2. Explain how and why those factors caused permanent disability; and
3. Explain why those factors are responsible for the percentage assigned by the medical-legal evaluator.

A helpful reminder for all of us, no doubt!