WCDefenseCA

Happy Monday, dear readers!

The WCAB has issued an en banc  decision in the matter of Nunes v. State of California, Dept. of Motor Vehicles and it’s a doozy! 

In a perfect world, we’d have a hard-and-fast rule from the WCAB that if there is apportionment to non-industrial or prior industrial factors, vocational rehabilitation cannot be used to rebut the PDRS.  Alas, it is not to be.  So, let’s dive into what we do have!

There are a lot of details to this case, so if you’re like to do what the kids call “tl;dr”, here’s the skinny: “vocational apportionment” has something in common with Santa Clause and the Easter Bunny as all three of them are figments of the imagination of some of our colleagues.  Apportionment analysis made by a vocational rehabilitation expert must follow the rules set out for medical apportionment, and the fact that previously asymptomatic conditions failed to manifest in work restrictions or reduced wages is irrelevant. 

To rebut the PDRS and show permanent total disability due to the applicant not being amenable to rehabilitation, the voc-rehab expert must show that one industrial injury was sufficient to render applicant unable to participate in the open labor market.

Now for the details!

In the Nunes case, applicant sustained two admitted injuries working for the same defendant: one to her neck, upper extremities, and left shoulder; the other to her bilateral upper extremities as a CT.  The AME found 100% industrial causation for the left shoulder, 60% industrial causation for the cervical spine, and 40% industrial causation for the carpal tunnel CT.  The AME further opined that she did not expect applicant to be employable in the open-labor market, due to her pain and function.

Applicant’s voc-rehab expert concluded applicant “sustained a 100 percent loss of access to her open labor market.”  He deemed her “not amenable” to vocational rehabilitation.  The expert, though, distinguished “medical apportionment” from “vocational apportionment,” noting that her non-industrial factors have no impact on her earning capacity, and that the AME’s permanent work restrictions “have rendered Ms. Nunes 100 percent permanently and totally disabled” and that this would be the case solely on her left shoulder and cervical spine complaints. 

By contrast, the defense voc-rehab expert traced the AME’s apportionment to conclude that at least 10% “vocational apportionment” to non-industrial medical factors existed in this case.  After a trial, the WCJ found 100% permanent disability based on applicant’s voc-rehab expert’s opinions.

The WCAB had several rulings in response to defendant’s petition for reconsideration.  First, it ruled that there is no such thing as “vocational apportionment.”  A reporting physician is authorized and required, under Labor Code section 4663, to make an apportionment determination for other factors causing permanent disability (non-industrial, prior industrial, and post-injury factors included).  Likewise, the en banc opinion holds, “in order to constitute substantial medical evidence, a vocational expert’s opinion must detail the history and evidence in support of its conclusions, as well as ‘how and why’ any specific condition or factor is causing permanent disability.”

The WCAB concluded that vocational evidence is relevant to the issue of permanent disability and can be used to rebut a scheduled rating by establishing “that an injured worker is not feasible for vocational retraining.”

Finally, the WCAB held that “in order to constitute substantial evidence, vocational reporting must consider medical apportionment.”  The WCAB continued that “factors of apportionment must be carefully considered, even in cases where an injured worker is permanently and totally disabled as a result of an inability to participate in vocational retraining.”  However, required apportionment analysis “does not permit reliance on facts offered in support of a competing theory of apportionment.” 

Providing general guidance, the WCAB offered this guidance: “an analysis of whether there are valid sources of apportionment is still required even when applicant is deemed not feasible for vocational retraining and is permanently and totally disabled as a result.  In such cases, the WCJ must determine whether the cause of the permanent and total disability includes nonindustrial or prior industrial factors, or whether the permanent disability reflected in applicant’s inability to meaningfully participate in vocational retraining arises solely out of the current industrial injury.”

Now, dear readers, before we get to the end of the story and the result, that last line has your humble blogger checking under his bed for monsters.  Did the WCAB just give vocational rehabilitation experts the boilerplate language they must now paste into every report to avoid apportionment?  If a voc-rehab expert can justify a theory that applicant is rendered unamenable to rehabilitation solely from work restrictions on a body part that is not subject to apportionment, is that enough to reach 100%?

The WCAB concluded that based on the opinions of both voc-rehab experts and the AME, “applicant’s inability to participate on vocational retraining renders her permanently and totally disabled.”  However, what about the apportionment issue?

The WCAB held that because applicant’s vocational rehabilitation expert asserted that “applicant’s prior award of disability and degenerative changes need not be considered, because they did not manifest in an inability to perform pre-injury job functions or reduced earning capacity” the voc-rehab expert failed to account for disability that formerly could not have been apportioned, such as asymptomatic prior conditions and retroactive prophylactic work preclusions. 

The WCAB then rejected both vocational rehabilitation expert opinions (applicant’s for not properly analyzing apportionment; defendant’s for being speculative as to the extent of apportionment).  The matter was returned to the trial judge for further development of the record, with leave granted to both parties to obtain supplemental reporting and for the WCJ to prepare a record addressing cause of permanent disability as between the two dates of injury.

So, what do we take away from the Nunes case?

Well, for starters, all of that nonsense about “vocational apportionment” is now moot.  The fact that a prior condition or injury had no measurable impact of wages or occupation does not impact the case at all.  Further, we have to hone in on solid evidence of apportionment.  The injuries that, by themselves, render an employee permanently and totally disabled are fairly rare, and most of them already presume permanent total disability under Labor Code section 4662.  While it’s certainly possible to be totally precluded from the open labor market from a single injury, odds are high that it is a combination of factors, only one of which is the industrial injury.

While taking Nunes on the attack against applicant’s voc rehab experts, we also have to make sure defense voc-rehab experts are not relying on the now curtailed theory of vocational apportionment, and to clearly explain the basis for any apportionment of market preclusion. 

I know this is a long blog post, dear readers, and those of you who have stuck with it this far get a lovely imaginary gold star from your humble blogger.

What are your thoughts on the Nunes case?  Drop me an email or a comment at your leisure!

Happy Monday, dear readers!  Let’s take a hypothetical situation – parties convene for an MSC on an admitted injury.  The AME finds WPI which rates to 45% PD, but apportions 66% of that PD to non-industrial factors.  Defendant naturally expects an award of 15% PD, right?

But, horror of horrors, the WCJ finds that the AME’s opinions on apportionment are not substantial medical evidence!  What should the defendant do?

Well, why not ask to develop the record further so that the AME can clarify the given opinions on apportionment?  As my good friend Gunter would say, wo ist deine autoritat?   

Defendant’s bear the burden of proving apportionment, right?  If we can’t get that done at trial, too bad, so sad, and we’re stuck, no?  Well, now we have at least one panel decision to help us argue that, should the WCJ find that a medical-legal opinion as to apportionment does not constitute substantial medical evidence, the record should be developed.

In the recent panel decision of Sutherland v. Gold Trail Union School District, the AME initially issued a report apportioning 25% of applicant’s permanent disability to prior problems with her shoulder.  However, in a subsequent report issued after reviewing medical reports, the AME found that 50% of the permanent disability should be apportioned to non-industrial factors. 

The WCAB wrote that “we see that [the AME] did not explain the basis for the change in his opinion regarding apportionment of applicant’s right shoulder disability, but more importantly, in none of his reports did he explain how and why the pre-existing factors were causing permanent disability at the time of the evaluation, nor how and why those factors were responsible for 50% of applicant’s right shoulder disability.”

The WCAB invoked its authority to develop the record to send the matter back to the trial level and back to the AME to clarify the record!  Your humble blogger is happy enough with the result, but shouldn’t this panel decision be cited going forward?  If defendant does not carry its burden of proving apportionment in that the evidence offered is not substantial medical evidence, defendants should request an opportunity to develop the record as contemplated by the Sutherland panel decision.

Now, before we all get excited and start carrying the humble blogger around on our shoulders cheering his dry wit and bow ties, let’s remember that panel decisions are not binding authority and provide guidance to trial judges only.  Ideally, we will all go into trial with ironclad opinions on apportionment that are clearly substantial medical evidence.  But, should that not turn in our favor, the Sutherland panel provides for development of the record on the issue of apportionment.  What’s good for the goose, after all, is good for the gander.

What do you think, dear readers?

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!

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.

Have a great weekend, dear readers!