18 Mar 2015

California Apportionment: The “How and Why” Standard and Independent Determinations by Specialty

Key Takeaways:

1. The approximate non-industrial apportionment determination in any medical report must meet the “how and why” standard

2. Reporting physicians in different medical specialties must assess and determine apportionment independently

(Publisher’s Note: Cases link to Lexis Advance unless otherwise noted)

In Aima v. Buestad Construction, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 62 [2015 Cal. Wrk. Comp. P.D. LEXIS 62 (lexis.com)], the WCAB provided guidance on rebutting a strict rating under the AMA Guides as well as what constitutes substantial evidence for apportionment in a case of permanent total disability where the applicant sustained an industrial cumulative injury to his back, psyche, and in the form of sleep and sexual dysfunction.

Rebutting Strict Rating Under the AMA Guides

The WCAB affirmed the WCJ’s finding that the applicant, a construction laborer, incurred 100 percent permanent disability from an industrial cumulative injury to his back, psyche and in the form of sleep and sexual dysfunction, without justification for apportionment. The WCAB found the applicant’s credible testimony, as well as the opinions of the agreed medical examiners, Drs. Taylor (orthopedic) and Lerchin (psychiatric) and the opinion of the applicant’s vocational expert, Malcolm Brodzinsky, were more persuasive than the reporting of the defendant’s vocational expert, Eugene Van de Bittner. The WCAB reasoned that the work restrictions imposed by the AMEs, combined with the applicant’s cognitive impairments he suffered as a side effect of the medication he took (including Percocet, Trazodone, Lyrica, Flexoril, Synecot and Pristiq), made it impossible for him to compete in the labor market and caused a total loss of his future earning capacity pursuant to LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234, 193 Cal. Rptr. 547, 666 P.2d 989, 48 Cal. Comp. Cases 587 [48 CCC 587 (lexis.com)].

The WCAB also determined that the opinions of the AMEs, as well as the reporting of the applicant’s vocational expert, were sufficient to rebut a strict AMA Guides impairment under Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 129 Cal. Rptr. 3d 704, 76 Cal. Comp. Cases 624 [76 CCC 624 (lexis.com)]. The WCAB found that the opinion of the defendant’s vocational expert that there were some areas of the labor market in which the applicant could perform was not plausible in light of the varied and significant work restrictions and limitations, both physical and cognitive, that the AMEs found applied to the applicant. According to the WCAB, the defendant’s vocational expert unduly minimized the effects of the applicant’s medication-related cognitive and attention limitations in asserting that there were jobs the applicant could perform within the physical restrictions imposed by the AME Dr. Taylor.

The WCAB also found that the defendant’s vocational expert did not adequately explain how the applicant, who the AME opined would need to be absent from work an average of three days per month because of his continuing pain, could satisfy the production and scheduling required of any employer.

Apportionment

The WCAB, affirming the WCJ, also found no substantial evidence to justify apportionment of the applicant’s permanent total disability caused by an industrial cumulative injury to his back, psyche and in the form of sleep and sexual dysfunction during the period ending 12/26/2006. The WCAB rejected the testimony from the orthopedic AME, Dr. Taylor, who opined that 15 percent of the applicant’s orthopedic permanent disability was attributable to preexisting, nonindustrial factors, including degenerative changes, “aches and pains associated with a day’s heavy labor” and/or a 2003 motor vehicle accident.

The WCAB emphasized that Dr. Taylor did not indicate whether the degenerative changes were caused or accelerated by the applicant’s years of heavy labor or explain how the degenerative change were the result of nonindustrial factors. The WCAB also found that any “aches and pains” from work referenced by Dr. Taylor would be industrial, and the applicant’s testimony plus contemporaneous medical records showed that the applicant completely recovered from his back symptoms within a few weeks of the motor vehicle accident such that apportionment to the accident would be inappropriate.

The WCAB also rejected the decision of the psychiatric AME, Dr. Lerchin, to apportion psychiatric disability in accordance with the apportionment of Dr. Taylor, the orthopedic AME. The WCAB found that since Dr. Lerchin apportioned the applicant’s psychiatric disability based on Dr. Taylor’s orthopedic apportionment findings, which were determined to be inadequate, the psychiatric AME’s opinion regarding apportionment likewise failed.

Read the Aima noteworthy panel decision.

COMMENTARY BY RAYMOND F. CORREIO, ESQ.

With respect to the interaction of medical evidence of apportionment on vocational evidence, this case on its facts is clearly distinguishable from the recent line of cases subsequent to Acme Steel v. W.C.A.B. (Borman) (2013) 218 Cal. App. 4th 1137, 160 Cal. Rptr. 3d 712, 78 Cal. Comp. Cases 751, holding that in order for vocational evidence to constitute substantial evidence it must consider and apply unrebutted substantial medical evidence of apportionment. Brewer v. California Department of Corrections, 2014 Cal. Wrk. Comp. P.D. LEXIS 218; Lentz v. W.C.A.B. (2013) 78 Cal. Comp. Cases 1003; Williams v. W.C.A.B. (Berkley Unified School District) (2013) 78 Cal. Comp. Cases 811; and Duplessis v Network Appliance Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS 316. What links all of these cases is the fact there was unrebutted substantial medical evidence of some percentage of non-industrial apportionment. However, in this case for a variety of reasons exhaustively articulated by the WCJ in his Report on Reconsideration, the opinion of the AME in orthopedics that 15% of the applicant’s permanent disability should be apportioned to non-industrial factors did not constitute substantial medical evidence.

Since the psychiatric AME’s apportionment determination and opinion simply “tracked” the orthopedic AME’s apportionment percentage, it also failed to constitute substantial medical evidence. In essence the orthopedic AME failed to assess and adequately explain “how and why” either the traffic accident the applicant suffered in May of 2003, or alleged related degenerative changes, were contributing factors to the applicant’s orthopedic permanent disability. This resulted in substantial vocational evidence without consideration of medical apportionment that the applicant successfully relied on to rebut the scheduled permanent disability rating.

If there had been unrebutted substantial medical evidence of 15% non-industrial apportionment, both vocational experts in the case would have been required to apply and consider it in their opinions as to whether the applicant suffered a total loss of earning capacity or his ability to compete in the open labor market, which the WCJ characterized as “synonymous” concepts.

One of the key practice pointers in this case for defendants is not to be seduced and blinded by favorable apportionment percentages. In all cases, but especially cases of this value, the pivotal question is whether the approximate non-industrial apportionment determination in any medical report meets the “how and why” standard articulated in Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (WCAB en banc) and Yeager Construction v W.C.A.B. (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687. In other words, the reporting physician must adequately explain “how and why” the identified non-industrial factor or factors are a contributing cause of the applicant’s permanent disability.

The other lesson is that reporting physicians in different medical specialties must assess and determine apportionment independently based on non-industrial factors that may only be applicable and germane to their particular medical specialty. Clearly potential psychiatric or psychological non-industrial contributing factors are unique and different than orthopedic non-industrial factors even in compensable consequence injuries.

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