California: Whose Burden Is It, Anyway?

With all of the changes in the law the last few years, practitioners are finding it more difficult to determine which side has the burden of proof. Once determined, they have a difficult time finding the appropriate evidence needed to meet this burden. Set forth below is a summary of recent Noteworthy Panel Decisions addressing the burden of proof required for the most frequently addressed issues at the trial level.

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I. Permanent Disability

In Nickell v. PKB Investments, 2013 Cal. Wrk. Comp. P.D. LEXIS 274 (Appeals Board noteworthy panel decision), the Workers’ Compensation Judge (WCJ) held in favor of applicant. The WCAB affirmed the WCJ on some issues and reversed on others. Most of the issues turned on burden of proof.

First, the WCAB noted that LC 5705 applied regarding burden of proof. LC 5705 states, in pertinent part, that the “burden of proof rests upon the party or lien claimant holding the affirmative of the issue.” In other words, if you need to prove an issue in your case, it is your burden to prove it. Your opponent need not respond until you have carried your burden of proof.

In this case, Ms. Nickell, a home health care worker, suffered an admitted industrial injury to her back on 12/31/2010. The Agreed Medical Evaluator (AME), Dr. Mandell, initially provided a strict AMA Guides rating of her impairment using the DRE method. He determined, however, that this was not an accurate rating, given the severity of her injury.

He then provided an alternative “Guzman” (Milpitas Unified v. WCAB (Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837) rating using the “Hernia” metric, Table 6-9, p. 136, of the AMA Guides. He determined that Ms. Nickell’s back impairment would fall in the middle of Class 2, which has a 10-19% impairment range. This Class 2 selection is for injuries that result in “frequent discomfort, precluding heavy lifting but not hampering some activities of daily living (ADLs).” Based on the impact of her injury on her ADLs, Dr. Mandell determined that Ms. Nickell would have a 15% whole person impairment.

The WCJ held in favor of the injured worker and determined her impairment to be 15%. He explained the rationale for his conclusion by stating that the defense did not meet their “burden of proof.” The WCJ stated, “Therefore, it appears that the Employer had an opportunity to rebut Dr. Mandell’s positions taken in his report, but failed to do so. Since Dr. Mandell clearly rejected the strict AMA Guide application in his report, and put into its place the Almaraz-Guzman analysis, the burden shifted to the Employer to contest it and without evidence pointing to the inaccuracies of applying Almaraz-Guzman analysis, the Employer’s argument here fails as well.”

The WCAB affirmed the WCJ’s conclusion of 15% WPI, but clarified the burden of proof analysis.

The WCAB emphasized that it is not the defendant’s burden to prove that the strict rating of the AMA Guides is accurate, because the PDRS is prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule. (Bold and italics added.)” (LC 4660(c)) Thus, the defendant was not required to prove by a preponderance of the evidence that the strict application of AMA Guides was appropriate because the AMA Guides are prima facie evidence of disability.

The WCAB then explained the correct sequence of proving facts in a permanent disability dispute case.

1. First, the strict AMA Guides rating must be provided.

2. Second, if a party does not believe this rating is accurate, that party has the burden of rebuttal. In this case, Ms. Nickell produced evidence in the form of the report of the QME to prove that the strict rating was inaccurate and that the “Guzman” rating of 15% was accurate. Both the WCJ and the WCAB determined that applicant met her burden of rebutting the strict AMA Guides rating with a preponderance of the evidence. This level of evidence is defined in LC 3202.5 as “evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth.”

3. Third, the WCAB added that, “[o]f course, once applicant has put forth evidence to rebut the rating, a defendant may put forth evidence to show that the opinion of the medical provider is not substantial evidence.”

II. Maximum Medical Improvement (MMI) & Permanent & Stationary Date

As set forth in the Nickell noteworthy panel decision, discussed above, per LC 5705, the party with the affirmative on an issue has the burden of proving that issue. Therefore, the WCAB stated, “we clarify that it is applicant’s burden to prove the date on which she reached MMI by a preponderance of the evidence. Conversely, it is not defendant’s burden to prove that applicant reached MMI on some other date or that applicant did not reach MMI on July 19, 2011.”

III. Apportionment

The WCJ in Jackson v. County of Los Angeles, 2013 Cal. Wrk. Comp. P.D. LEXIS 558 (Appeals Board noteworthy panel decision), reiterated that the defendant has the burden of proof on the issue of apportionment, citing the following seminal cases:

> Pullman Kellogg v. Workers’ Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450, 456 [45 Cal.Comp.Cases 170, 173–174];

> Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [74 Cal.Comp.Cases 113, 133];

> Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229, 1243];

> Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc opinion)

In Jackson, applicant suffered a psychiatric compensable consequence of her industrial back and internal system injury. The orthopedic AME found 50% apportionment to non-industrial factors with regard to her physical injury. Defendant argued that, since the psych injury was a compensable consequence of the physical injury and derivative of that injury, only 50% of the psych injury should be attributable to industrial factors and the psychiatric AME should have found 50% apportionment to non-industrial factors.

The WCJ rejected this argument, stating:

“Defendant’s attempt to double dip confuses the issues of apportionment of injury and apportionment of disability. . . .

. . .

. . . [E]ven if there is legal apportionment of the applicant’s back disability, nowhere in the apportionment mandates of the Escobedo case or LC 4663 does it indicate that apportionment of one part of body necessarily flows to each and every injury claimed.”

The WCJ concluded that the defendant has the burden of proof on this issue and “could have chosen to obtain a supplemental report or request a cross-examination of Dr. Wolf if they wished to further explore apportionment issues, but they chose not to do so. Apportioning disability found by Dr. Sohn for an orthopedic condition to psychiatric disability without a basis therefore is impermissible. There is no proof or indication that applicant’s degenerative disease on its own was a causal factor in her permanent psychiatric disability.”

IV. Home Health Care Services

Several noteworthy panel decisions discuss burden of proof for reimbursement for home health care services post-SB 863.

In Salguero v. Gemeiner Cabinets, 2013 Cal. Wrk. Comp. P.D. LEXIS 450 (Appeals Board noteworthy panel decision), the WCJ emphasized the importance of citing a nationally recognized treatment guideline, just as is done in any other medical treatment dispute. The WCJ in the Salguero panel decision wrote, “As applicant seemingly acknowledges, the more applicable guidelines may be the chronic pain guidelines of AD rule 9792.24.2, which are posted online at http://www.dir.ca.gov/dwc/DWCPropRegs/MTUS_Regulations/MTUS_ChronicPainMedical%20TreatmentGuidelines.pdf. These guidelines state the following under the heading, ‘Home Health Services’: Recommended only for otherwise recommended medical treatment for patients who are homebound, on a part-time or ‘intermittent’ basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing, and using the bathroom when this is the only care needed. (CMS, 2004)”

In addition, the following code sections were revised or added by SB 863 and altered the injured worker’s burden of proof on this type of reimbursement request.

> LC 4600(h) requires that the employer/insurance company actually receive the physician’s prescription.

> LC 4603.2(b)(1) requires the home health care service provider to submit “an itemization of services provided.”

> LC 5307.8 provides, “No fees shall be provided for any services, including any services provided by a member of the employee’s household, to the extent the services had been regularly performed in the same manner and to the same degree prior to the date of injury.”

V. Medical Treatment Disputes

In Allen v. Sonoma Valley Unified School District, 2013 Cal. Wrk. Comp. P.D. LEXIS 470 (Appeals Board noteworthy panel decision), the injured worker sought authorization for a gym membership. The WCAB clarified that, even if a UR determination is untimely or invalid, “an injured employee must still prove that the sought treatment is medically reasonable and necessary.” (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (Sandhagen) (2008) 44 Cal.4th 230, 242 [73 Cal.Comp.Cases 981].) This is consistent with the later-issued WCAB Rule 10451.2(c)(1)(C) (effective 10/23/2014) that states, “. . . however, if the employee prevails in this assertion [i.e., that the UR determination was invalid], the employee or provider still has the burden of showing entitlement to the recommended treatment.”

The WCAB determined in Allen that the gym membership was a reasonable and necessary treatment, based on the recommendation of applicant’s QME. It should be noted that the QME provided a lengthy discussion of how and why the gym membership would relieve the injured worker from the effects of his industrial injury. Without this explanation, it would be doubtful as to whether the QME’s report would constitute substantial evidence.

It should also be noted that post-SB 863, AMEs and QMEs are no longer permitted to address medical treatment dispute issues. For instance, 8 CCR 35.5(g)(2)  provides, “For any evaluation performed on or after July 1, 2013, and regardless of the date of injury, an Agreed Medical Evaluator or Qualified Medical Evaluator shall not provide an opinion on any disputed medical treatment issue, but shall provide an opinion about whether the injured worker will need future medical care to cure or relieve the effects of an industrial injury.” (Emphasis added.)

Therefore, be sure to note that injured workers will have to sustain their burden of proof on medical treatment dispute issues with the treating physician’s report.

Conclusion:

Before filing a DOR, identify the exhibits that will be offered to sustain the necessary burden of proof for each issue. If a critical piece of evidence is missing, such as an apportionment explanation from the psych AME in compliance with Escobedo, supra, request a supplemental report or take the appropriate deposition, well before the Mandatory Settlement Conference, to ensure that all substantial evidence will be admissible at trial. (See McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc opinion).)

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