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?