California: Apportionment Determinations and Petitions to Reopen: A Primer on Methodology

A persistent problem area for workers’ compensation practitioners, physicians, and WCJs is to understand and apply the proper methodology to determine apportionment related to Petitions to Reopen for New and Further Disability under the WCAB’s en banc decision in Vargas v. Atascadero State Hospital (2006) 71 Cal.Comp.Cases 500 (WCAB en banc).

The recent case of Wilson v. 20/20 Administrative Services, The Hartford Insurance Company 2016 Cal.Wrk.Comp. P.D. LEXIS 654, graphically illustrates the problem.  Both the reporting physicians as well as the WCJ were unable to properly assess and apply the correct methodology for determining apportionment in this rather common Petition to Reopen fact pattern.

Following trial the WCJ issued an amended Findings and Order related to a cumulative trauma from April 2007 to April 2008, where applicant sustained industrial injury to her neck, back, upper extremities, psyche, internal system, high blood pressure/nervous system, and sleep, with permanent disability of 68% after non-industrial apportionment of 12% related to applicant’s psychiatric disability and 80% to her internal cardiovascular disability.

Previously, applicant had received a Stipulated Award on January 25, 2012, for 68%.  Given the prior Award, the WCJ found the present permanent disability of 68% was no greater than the prior award of 68%, and that applicant take nothing further related to her Petition to Reopen for New and Further Disability.  Applicant filed a Petition for Reconsideration arguing that the AME in psychology and the PQME in internal medicine had both found new and further permanent disability and that any apportionment related to the new and further disability found by the WCJ was not supported by substantial medical evidence.  Applicant also argued defendant had not timely raised the issue of apportionment before the case was tried and submitted.

Whether defendant properly raised apportionment as an issue before the case was tried and submitted:  On Reconsideration the WCAB found that defendant had properly and timely raised the issue of apportionment.  In that regard the WCAB stated:

Even though the “apportionment” box on page three of the Pretrial Conference Statement of July 13, 2015 was not checked, the “other issues” box at the bottom of the same page was checked, and “LC 4664” was handwritten within the list of “other issues.” Secondly, the issue of permanent disability was identified in the “Stipulations and Issues” statement in the Minutes of Hearing at trial on February 3, 2016, and although “apportionment” was not specifically raised, the identification of permanent disability as a disputed issue was sufficient to raise the issue of apportionment.  (See Bontempo v. Workers’ Comp. Appeals Bd. (2009) 173 Cal.App.4th 689, 704 (74 Cal.Comp.Cases 419): (Raising the issues of permanent disability (Lab. Code §4660) and apportionment (Lab. Code, §§4663, 4664) was sufficient to raise the 15% increase in permanent disability under Labor Code section 4658(d).].)

The reporting physicians in psychiatry and internal medicine and the WCJ failed to properly determine apportionment related to applicant’s Petition to Reopen for New and Further Disability: Under the facts of Wilson, the reporting physician in orthopedics determined there was no new and further disability.  However, the AME in psychiatry found there was new and further disability, but also applied 12% nonindustrial apportionment to applicant’s psychiatric disability. The PQME in internal medicine found there was 80% nonindustrial apportionment to applicant’s cardiovascular disability related to the Petition to Reopen for New and Further Disability. However, there was no indication by either of these reporting physicians that the percentage of nonindustrial apportionment was determined related to the specific time frame from immediately after the prior Stipulated Award of January 25, 2012, for 68% up until the dates of their respective MMI/P&S evaluations and related reports.

Moreover, in Wilson, the WCAB determined that the PQME in internal medicine’s opinion on apportionment did not comply with the Escobedo standards since he did not describe in detail the exact nature of the apportionable disability caused by applicant’s preexisting hypertension and that the physician was “opaque” in setting forth the basis for his apportionment opinion.  The WCAB also took issue with the fact the AME in psychology may have derived his apportionment percentage determination from the flawed apportionment opinion of the PQME in internal medicine.

As a consequence, the Board found good cause to develop the record further on the issue of apportionment and remanded the case for supplemental opinions consistent with their analysis.  The WCAB stressed in Footnote No. 2 that, “the question for both physicians is whether there is a medical basis to apportion applicant’s present new and further permanent disability, if any, without reference to any apportionment that may have existed at the time of the prior Stipulated Award.”

Comment & Practice Pointers:  In the first few years after SB 899 and Labor Code §§4663 and 4664 were enacted, physicians, attorneys, and trial judges had an exceedingly difficult time determining how to properly calculate and determine apportionment in cases involving Petitions to Reopen for New and Further disability.  This led to the WCAB’s en banc decision in Vargas v. Atascadero State Hospital (2006) 71 Cal.Comp.Cases 500, which provides explicit guidance with respect to the correct methodology in determining and applying valid legal apportionment under Labor Code §§4663 and 4664 related to Petitions to Reopen For New and Further Disability.  For a medical opinion to constitute substantial medical evidence an applicant’s new and further disability over and above a prior award, the determination of valid legal apportionment must be based on a focal timeline between the date the prior Stipulated Award issued and the MMI/P&S evaluations in any related medical specialty.  It is only during this defined and limited timeframe that any contributing nonindustrial causal factors of the applicant’s new and further disability must be determined without reference to any apportionment or basis for apportionment that may have existed at or before the date of the prior Stipulated Award.

For other cases illustrating the correct application of the methodology under the WCAB’s en banc decision in Vargas, see Charon v. WCAB (Ralph’s Grocery Company (2013) 78 Cal.Comp.Cases 869 (writ denied) (Valid 10% nonindustrial apportionment in a Petition to Reopen in a psychiatric case based on applicant’s nonindustrial issues and interactions with her daughter and grandchildren that all occurred after the original Stipulated Award of 48% in February of 2000.  Applicant’s award of 100% PTD on the Petition to Reopen was reduced to 90%), see also, Rocha v. TTX Company 2008 Cal.Wrk.Comp. P.D. LEXIS 348 (WCAB panel decision); Bunnie Orange v. Hilton Hotel Corp., Specialty Risk Services 2008 Cal.Wrk.Comp. P.D. LEXIS 14 (WCAB panel decision); Cruz v. Santa Barbara County Probation Dept. 2008 Cal.Wrk.Comp. P.D. LEXIS 427 (WCAB panel decision);  Milivojevich v. United Airlines (2007) 72 Cal.Comp.Cases 1415, 2007 Cal.Wrk.Comp. LEXIS 322 (writ denied); Wilson-Marshall v. WCAB (2007) 72 Cal.Comp.Cases 1736 (writ denied); Johnson v. City of Los Angeles (2009) 74 Cal.Comp.Cases 1, Court of Appeal (not certified for publication, 18 ½ page decision!); Rowe v. County of San Diego 2009 Cal.Wrk.Comp. P.D. LEXIS 470 (WCAB panel decision); Balderas v. GTE Corporation 2010 Cal.Wrk.Comp. P.D. LEXIS 270 (WCAB panel decision); Tull v. General Lighting Service (CIGA) 2010 Cal.Wrk.Comp. P.D. LEXIS 391 (WCAB panel decision); Ortiz v. Orange County Transportation Authority, PSI 2012 Cal.Wrk.Comp. P.D. LEXIS 429 (WCAB panel decision); Bates v. WCAB (2012) 77 Cal.Comp.Cases 636; 2012 Cal.Wrk.Comp. LEXIS 80 (writ denied).

© Copyright 2017 Raymond F. Correio. All rights reserved. Reprinted with permission.