Happy Monday, dear readers!

Your humble blogger loves his fine cuisine, of course, but his favorite place to dine is Henry’s Hunan restaurant in San Francisco.  The only thing better than eat at Henry’s is having a delicious box of Henry’s left-overs waiting in one’s fridge.  On a particularly difficult day, I recall myself drawing motivation at the thought that when all was said and done, I could come home and have my Chinese food leftovers.

Imagine the shock, the pain, and the frustration when I got home and one of the people with access to my fridge decided to eat the food themselves!  Oh, how that feeling still burns deep in my soul all these years later.

I imagine that the pain is akin to what the defendants in the recent panel decision of Jackson v. UC Berkeley felt.  Therein, a QME found impairment to the lumbar spine as 23% WPI for the DRE method and 21% for the Range of Motion method, and in both cases assigned a 3% pain add-on.  As to apportionment, the QME opined that 30% of the permanent disability was caused by non-industrial and other factors, to wit, degenerative conditions in the spine that pre-dated the industrial specific injury.

The parties proceeded to trial at which point the WCJ found that applicant had sustained 33% PD after apportionment.  Applicant then appealed, arguing that the QME’s opinions on apportionment were not substantial medical evidence.

The WCAB held that in order for a defendant to meet its burden of proving apportionment, the physician must “explain the nature of the degenerative disease [as in this case], how and why it was causing permanent disability at the time of the evaluation, and how and why it was responsible for the percentage of the disability assigned by the physician.”  Although the QME in this particular case explained what the non-industrial condition was, he did not explain, adequately enough, why 30% of applicant’s permanent disability was caused by this non-industrial condition.

Why were the degenerative changes responsible for 30% of applicant’s permanent disability?  According to the panel opinion, the explanation of “[applicant] had pre-existing pathology which contributed to her impairment, thus, the basis for apportionment and the basis for 30% apportionment to nonindustrial causes” was insufficient.  Perhaps, had the doctor explained that “absent this non-industrial degenerative condition, I would expect the injury to have resulted in X whole person impairment instead” that might suffice, but it appears the record did not include such reasoning.

So, imagine the emotional state of the defense in this case – securing an apportionment finding at trial just to have it taken away on appeal.

Such is life, dear readers.  Now, if you will excuse your humble blogger, he hears Henry’s calling him once again…