Tag Archives: Develop the Record

Apportionment Opinion Invalid? Just Develop the Record!

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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?

WCAB: Develop the Record on Covid19 Claim

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Happy Wednesday, dear readers!

We are powering through March and, if you’re like me, you’re still reeling from daylight saving time shift that occurred earlier this week. 

You know what’s special about March?  It’s been roughly three years since the lockdowns began.  So what better way to commemorate three years since the world turned upside down than with a COVID workers’ compensation case?

That case is the panel decision of Dawson v. Patton State Hospital.  Therein, following a trial, the WCJ concluded that applicant failed to carry her burden of proof of establishing industrial causation on COVID19 infection.  After returning from a non-work trip in March of 2020, applicant engaged in union activities and reported for work on March 17, 2020 with symptoms of a sore throat.  On March 28, 2020 she tested positive for COVID 19 based on a sample taken the prior day.

In reviewing the WCJ’s decision, the WCAB noted that the presumptions of industrial causation found in Executive Order N-62-20, later to be codified as SB1159, did not apply as applicant last worked on March 17, 2020, and the executive order applied for employees who worked on or after March 19, 2020.

What a difference a day makes, 24 little hours… (sing that one twice!)

Spoiler alert… the WCAB reversed the finding of no industrial causation.  But how? 

The WCAB noted that there was a dispute as to when the infection occurred as between the QME and the PTP.  The QME opined that the exposure likely happened during the non-work trip, while the PTP opined that the symptoms appear 2-14 days after the infection, which would rule out her trip as the exposure point.  Is the development of more severe symptoms the trigger for infection, or the milder symptoms applicant had after returning from her trip?

The WCAB ordered the parties to return to the trial level to further develop the record on whether the initial symptoms (sore throat) were the sign of COVID infection or the more severe symptoms to establish the date of infection.  The WCAB also provided guidance that applicant need not prove the exact time she became infected, but only if her work activities caused her to have higher risk than the general public of contracting the disease.

Your humble blogger, however, would submit that there is another point which the WCAB did not appear to consider: applicant’s burden of proof.  Applicant has one bite at the apple to establish initial causation and developing the record is not appropriate when applicant failed to establish AOE/COE.  If applicant fails to carry her burden at trial as to causation, the case should be done with an order to take nothing.

In litigating these cases, particularly when none of the COVID19 presumptions apply, defendants would be well served shooting for disproving causation, rather than merely pointing out that applicant has the burden of proof.  Since justice moves slowly, we are likely to continue seeing these cases reach the WCAB to address causation on COVID19.

Much like the Starks of Game of Thrones chant “Winter is Coming,” so too the motto for California workers’ compensation is “Reform is Coming.”  Every now and then, we see another attempt to fix the system.  Perhaps the defense community should add to its wish-list for the next reform a stricter standard for “developing the record,” particularly when AOE/COE is in dispute.