California: Causation of Injury v. Causation of Disability

California: Causation of Injury v. Causation of Disability subscribers can link to the cases cited below.

The issue of causation has been a central theme in many recent cases. However, given that there are two types of legal causation in the world of workers’ compensation, it’s easy for people to get confused.

1. Causation of Injury deals with whether the injury arose out of employment and occurred in the course of employment (AOE/COE) and triggers the right to medical treatment if the cause is industrial.

2. Causation of Disability deals with a determination of accurate permanent disability and apportionment between industrial and non-industrial factors.

In order to insure they have substantial medical evidence at trial, attorneys should make sure that their evaluating physicians understand the distinction between these two types of causation. Failure of the doctor to properly analyze the appropriate type of causation may lead to significant delays and even negative results in the litigation process.

Set forth below is a discussion of three recent noteworthy panel decisions where this issue has presented a trap for the unwary. Practice tips are provided so that parties might avoid these problems in the future.

1. Contreras v. Ecolab, 2012 Cal. Wrk. Comp. P.D. LEXIS --

David Contreras was working as an exterminator when he was involved in a work-related car accident on July 28, 2010. Mr. Contreras testified that at the time of the collision, his left knee smashed up against the steering wheel and caused an injury to his knee.

Subsequently, Mr. Contreras was diagnosed with a “partial tear of the anterior cruciate ligament” of his left knee, which required surgery. There was no question that the car accident was industrial. However, the defense claimed the knee injury was non-industrial and was caused by Mr. Contreras’ years of playing recreational soccer.

The matter was set for a priority trial on the issue of AOE/COE.

Defense relied on Panel QME, Dr. Sherman, who supported their position that the injury was non-industrial and was the result of past non-industrial athletic activity, rather than the more recent car accident.

Applicant’s treating orthopedic specialist, Dr. Larsen, arrived at a contrary opinion. Dr. Larsen concluded that it was the industrial car accident that caused Mr. Contreras’ torn knee ligament and that he should therefore receive medical treatment for the knee on an industrial basis.

The judge reviewed the medical evidence and the testimony of the applicant. He noted that Mr. Contreras had not played soccer for quite a while prior to the industrial car accident, and yet his job duties as an exterminator were rather strenuous. At page 3 of his Report and Recommendation (R&R), the judge explained that it “would have been at least a year and a half while he performed these arduous duties, so it was doubtful he performed them with a torn anterior cruciate ligament.”

On page 3 of his R&R, the judge stated, “No evidence was produced that the applicant had ever missed any work due to this sports’ related injury, had treatment for this sports’ related injury…, nor was any evidence submitted that the applicant was unable to perform his normal duties prior to his industrial truck collision on July 28, 2010.”

The judge then explained the distinction between causation of injury and causation of disability pursuant to the facts of this case. He recognized that Mr. Contreras’ soccer activities may have contributed to his permanent disability (PD). These non-industrial factors may well be apportioned out of a final PD award at some point. However, PD and causation of disability were not the issues at this AOE/COE priority hearing.

The primary issue at the AOE/COE hearing was causation of injury and need for medical treatment. Based on the evidence presented, the judge determined that the cause of injury to Mr. Contreras’ knee was industrial. The defense was therefore deemed liable for all medical treatment related to the knee injury, as medical treatment is not apportionable. (See Granado v. WCAB (1968) 69 C2d 399; 33 CCC 647)

PRACTICE TIP - Educate the doctors: In the Blackledge case (Blackledge v. Bank of America, (2010) 75 CCC 613), the WCAB  explained in footnote 10, that it was the duty of the parties to educate the physicians as to utilization of the correct legal standards. (See also Gay v. WCAB (1979) 44 CCC 817.) To that end, it is important to explain all pertinent legal concepts to the evaluating physician, so that he or she may correctly apply those standards to the specific facts of the case at hand.

2. Beck v. Leprino Foods, 2012 Cal. Wrk. Comp. P.D. LEXIS -

On May 10, 2010, Carmen Beck slipped and fell at work. Her supervisor completed an incident report reflecting the fall, and Ms. Beck filed a claim for industrial injury.

Defense claimed the injury was not industrial, because there were inconsistencies in applicant’s testimony and “the application filed by applicant’s attorney contains additional body parts other than initially raised.” (Judge’s R&R p. 2)

The matter proceeded to trial on the AOE/COE issue with no evidence other than the applicant’s testimony and the corroborating testimony of her supervisor.

In this case, as in the Contreras case discussed above, the judge understood the distinction between the two different types of causation. In his R&R at page 2, he wrote, “It appears that defendant has the concept of injury arising out of and in the course of employment confused with the concept of the nature and extent of the industrial injury.”

The Judge found applicant’s testimony credible, and since no other credible evidence was presented to rebut or contradict her testimony (including no medical evidence), the Judge found that applicant had met her burden of proof on the issue of AOE/COE. (See McAllister v. WCAB & City and County of San Francisco (1968) 69 C2d 408; 33 CCC 660) 

PRACTICE TIP – Obtain Substantial Evidence: Medical evidence is often probative in an AOE/COE priority trial. If a party is contesting a claim of industrial causation by an applicant, it is a good idea to have medical evidence to support the theory of non-industrial causation. A doctor should provide commentary as to whether or not the mechanism of injury is consistent with the injury sustained. Failure to obtain such evidence could result in a finding in favor of the applicant as occurred in this case.

3.  Chaput v. Reyes Construction, 2012 Cal. Wrk. Comp. P.D. LEXIS -

While working as a construction worker, Devon Chaput sustained a non-industrial neck injury. Subsequently, on June 8, 2010, he suffered an industrial injury to his neck. The injury was so severe that he was required to undergo cervical surgery in August of 2010.

Defense denied the claim of industrial injury, and Mr. Chaput was examined by several doctors prior to a trial on the AOE/COE issue. The gist of defendant’s argument was that since Mr. Contreras had a prior injury, his present condition must be due to that prior non-industrial injury. This theory was supported by the AOE/COE medical evaluator, Dr. Woods. However, applicant’s physician, Dr. Brown, stated that the injury was industrial.

As in the two cases discussed above, the judge understood the distinction between causation of injury and causation of disability. She explained that defendant’s argument of apportionment to a prior injury might be applicable if the issue had been causation of disability. However, that was not the subject of the pending AOE/COE matter. The appropriate issue was AOE/COE and causation of injury. The judge held that Mr. Chaput met his burden of proof on this issue, based on his credible testimony and the medical report of his treating physician, Dr. Brown.

PRACTICE TIP – Supplement Medical Reports: As stated above, it’s critical, especially in AOE/COE trials, for the doctor’s causation analysis to clarify the type of causation he/she is analyzing. In trials where both AOE/COE and permanent disability are at issue, it is advisable to have the evaluating physician discuss causation of injury and causation of disability in two separately titled paragraphs. If the doctor has not done so, these two issues should be clarified in a supplemental report or during the doctor’s deposition testimony.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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