California: So You Think You Know Who Has the Burden of Proof on Apportionment?

Prior to Senate Bill 899, the law was clear as to which party had the burden of proof on the apportionment issue. If defendant could not provide substantial evidence that there was either pre-existing PD or a progressive disease process, apportionment could not be found. In other words, it was unequivocally defendant’s burden to prove up apportionment (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454, 605 P.2d 422, 161 Cal. Rptr. 783, 45 Cal. Comp. Cases 170).

Burden of Proof

Now, despite more recent citations to Pullman Kellogg in such cases as Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 71 Cal. Comp. Cases 1229, and others, a legitimate question can be asked as to whether it is still strictly defendant’s burden to prove apportionment. The question is whether the issues of PD and apportionment have become so intertwined, that applicant must now “prove up” that aspect of the PD he believes is caused by non-industrial causes if he wants to recover the PD he believes was caused by the industrial injury.

Subsequent to Senate Bill 899, Labor Code section 4663(a) now states, "Apportionment of permanent disability shall be based on causation." Subdivision (c) provides in pertinent part:

“(c) In order for a physician's report to be considered complete on the issue of permanent disability, it must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.”

Labor Code section 4664(a) provides, "The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment."

In Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313 [72 Cal. Comp. Cases 565, 574-577], the California Supreme Court discussed "the new regime of apportionment based on causation" enacted in Senate Bill 899:

"Until 2004, former section 4663 and case law interpreting the workers' compensation scheme closely circumscribed the bases for apportionment. Apportionment based on causation was prohibited. (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454 [605 P.2d 422, 161 Cal. Rptr. 783, 45 Cal. Comp. Cases 170] ['It is disability resulting from, rather than a cause of, a disease which is the proper subject of apportionment; 'pathology' may not be apportioned']… The plain language of new sections 4663 and 4664 demonstrates they were intended to reverse these features of former sections 4663 and 4750. (Kleeman v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 284-285 & fns. 25-27 [25 Cal. Rptr. 3d 448, 70 Cal. Comp. Cases 133].) Thus, new sections 4663, subdivision (a) and 4664, subdivision (a) eliminate the bar against apportionment based on pathology and asymptomatic causes (E.L. Yeager Construction v. Worker's Comp. Appeals Bd. (2006) 145 Cal.App.4th 922, 926-927 [52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 (en banc))… This explains the Legislature's purpose in adopting a revised section 4663 and a new section 4664. Further, one can see why it was necessary to repeal former sections 4663 and 4750. These provisions, as interpreted by the courts, were inconsistent with the new regime of apportionment based on causation, as well as the conclusive presumption that previous permanent disability still existed for apportionment purposes. (§§ 4663, subd. (a), 4664, subds. (a), (b).)… But under Senate Bill No. 899 (2003-2004 Reg. Sess.), the new approach to apportionment is to look at the current disability and parcel out its causative sources—nonindustrial, prior industrial, current industrial—and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries, not disregard of them. Thus, repeal of section 4750 was necessary to effect the Legislature's purposes in adopting a causation regime." (Footnote omitted.)

The question, then, is whether a medical report that does not adequately account for the non-industrial causes of PD, can be relied upon for purposes of determining the alleged industrial aspects of the permanent disability. In other words, must applicant “prove-up” all causes of the PD in order for the medical report he is relying on to be considered “complete”?

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board addressed this question. In Pruitt v. Calif. Dept. of Corrections, 2011 Cal. Wrk. Comp. P.D. LEXIS 553, the commissioners noted:

“Considering the present case in light of the new ‘causation regime,’ we observe that Dr. Sobol did not use the proper standard in making his apportionment determination. He declined to apportion to any factors other than applicant's industrial injury for the sole reason that the medical records did not show any prior problems with her knees, concluding, ‘Therefore, there is no substantial medical evidence that [sic] would have had any prior disability or impairment to her bilateral knees absent her industrial injury that occurred on May 27, 2008.’ He did not answer the question required of him by section 4663(c) and explained in Brodie, Escobedo, and Gatten: What percentage of applicant's current permanent disability was caused by the industrial injury and what percentage was caused by other factors, industrial and non-industrial, including those factors not apportionable under the old regime?”

Instead of simply concluding that defendant failed to meet its burden of proof under Pullman Kellogg, the WCAB panel concluded that the medical expert’s analysis was defective. This is what makes this case interesting, i.e., any time a physician fails to consider the “non-industrial” factors, it could be argued that the medical opinion fails to comply with the new “causation regime”. If this is the case, can it be said that apportionment is only the defendant’s problem?

Reminder: Be sure to check the subsequent history of a panel decision before citing to it.

© Copyright 2012 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter.

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