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:
Specifically discuss the factors causing permanent disability, particularly those besides the current industrial injury;
Explain how and why those factors caused permanent disability; and
Explain why those factors are responsible for the percentage assigned by the medical-legal evaluator.
Alrighty dear readers, we made it to another Friday!
And, not just any Friday. This Friday is special. Why? Because it’s the last day before one of your humble blogger’s favorite holidays – Independence Day! Take it from an immigrant and refugee, dear readers, this is, by far, the greatest country in which to live, evidenced more and more every day that, unlike your humble blogger’s country of origin, the population is free to leave at any time, yet every day more and more folks from all around the world arrive desperate to live here. We are truly, truly blessed!
But, before we get to the July 4 holiday, let’s take a moment to look at a panel decision on apportionment. Applicant petitioned to reopen a claim previously resolved claim and, after a trial the WCJ issued an award of 59% PD. However, defendant sought reconsideration, arguing that the QME had apportioned 50% of the increased permanent disability to a non-industrial MVA.
Now, dear readers, if we were hanging out on the school playground in the 90s right now, I would yell at the top of my lungs “SYKES!” and you would know that you had been bamboozled. However, since we’re not on a school playground in the 90s right now, I will not do that, and instead congratulate myself on yet another witty pun.
You see, the case is actually Sykes v. Los Angeles County Metropolitan Transit Authority, and the WCAB did no such thing, affirming the unapportioned award. Why? Well, keep reading!
The WCAB acknowledged that the initial burden of existence and extent of permanent disability was upon applicant, but that the burden of proving apportionment lay with the defense. In this case, while the QME offered an opinion as to causation, he also wrote that he had not reviewed any of the medical records pertaining to the MVA.
The WCAB rejected the apportionment opinions of the PQME because (1) he “apportioned to the 2016 non-industrial [MVA] without review of the complete medical records pertaining to applicant’s treatment and condition in relation to the accident”; and (2) the QME “does not explain how and why the non-industrial accident contributed to applicant’s current level of disability for her lumbar spine.”
The opinion then goes on to provide guidance on how a defendant can meet its burden for apportionment and how the defendant did not adequately carry that burden in the Sykes case.
So, here is a quick rundown of what the WCAB is looking for according to the panel opinion in Sykes.
If the defendant is trying to establish apportionment under Labor Code section 4663 (causation of permanent disability) there must be substantial medical evidence, presumably based on review of relevant medical records, and an explanation of how and why the non-industrial event caused a portion of the current permanent disability. In some off-the-record discussions, your humble blogger has had WCJs summarize this as “but-for the non-industrial event, what would the permanent disability have been?”
Sometimes this burden is not one that can be readily met – applicants sometimes conduct themselves with less integrity than one would hope, claiming not to remember where treatment was received or claiming no treatment was received for prior events.
Sometimes a physician can review MRI or x-ray films and conclude that some of the damage is much older than the current claimed date of injury and then describe why that damage is causing some of the current permanent disability, but this requires leg-work on the part of the defense attorney and sometimes even a deposition. Each claims adjuster has to run the analysis – is the delay in resolving the case and the extra litigation cost worth the chance of reducing permanent disability?
If the defendant is trying to establish apportionment under Labor Code section 4664 (prior award of permanent disability), it is defendant’s burden to produce proof that the prior award was issued and also to prove overlap. After all, a prior award for an injury to the left elbow does not trigger the conclusive presumption that there is permanent disability for the right knee. Again, this may require leg work on the part of the defense to establish a clear record – both in subpoenaing the WCAB file for the prior claim and showing the records to the medical-legal examiner and eliciting comment on apportionment.
The Sykes case is a very good reminder for us in the defense community that the conclusion section of the QME report is not where the work ends. We have to look at our own evidence with a critical eye and lay the necessary foundation before we proceed to trial. Applicant attorneys are certainly looking for weaknesses in the defense case – defendants are best served by identifying those weaknesses while discovery is still open rather than when it is long closed.
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