18 Mar 2015

California Apportionment: Three Separate Injuries Inextricably Intertwined Justified Combined Award

In Dileva v. Northrop Grumman Systems Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split panel WCAB affirmed the WCJ’s joint award of 96 percent permanent disability for the applicant’s three separate injuries to his spine and psyche, without apportionment between the dates of injury pursuant to Labor Code § 4663 [LC 4663 (lexis.com)].

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

The WCAB held that, while the orthopedic agreed medical examiner Michael Patzakis, M.D., was able to apportion the applicant’s orthopedic disability between the three dates of injury as contemplated in Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113 [74 CCC 113 (lexis.com)], the fact that the treating psychiatrist, David Friedman, M.D., found combined psychiatric effects of the three injuries to be inextricably intertwined justified a combined award.

The WCAB reasoned that the defendant did not request a panel qualified medical evaluator in psychiatry pursuant to Labor Code § 4062.2 [LC 4062.2 (lexis.com)] to resolve the apportionment issue with respect to the psychiatric disability and, instead, chose to file a Declaration of Readiness to Proceed without any evidence on the issue of psychiatric apportionment other than Dr. Friedman’s reports, that even though the applicant’s psychiatric injury was a compensable consequence of his orthopedic injury, as noted by the defendant, an analysis regarding causation of injury is not necessarily the same as that for the causation of permanent disability, and that while it may be easier to apportion permanent disability identically for all body parts, the WCAB may not substitute its own judgment with respect to apportionment for the judgment of medical experts.

Commissioner Lowe, dissenting from the majority panel opinion, found that Dr. Friedman’s report did not constitute substantial evidence because the report was inconsistent with Dr. Patzakis’ orthopedic report, and Dr. Friedman did not explain, as required under Labor Code § 4663, why he believed it would be speculative to attempt to apportion the psychiatric injury. Thus, given the deficiencies in Dr. Friedman’s reporting, Commissioner Lowe believed the matter should be returned to the WCJ for further development of the record on the issue of apportionment of the applicant’s psychiatric injury.

Read the Dileva noteworthy panel decision.

COMMENTARY BY RAYMOND F. CORREIO, ESQ.:

This case is both interesting and instructive on multiple issues. There are three separate dates of injury. A cumulative trauma injury (“CT”) ending in 2003 to multiple orthopedic body parts, gastrointestinal, and psychological system. There are also two specific injuries, one in 1993 and the other in 1994, involving only the lumbar spine. The AME in orthopedics under Benson v. WCAB (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113] (apportionment to successive and distinct injuries), apportioned 75% of the orthopedic disability to both specific injuries and 75% to the CT.

The only medical evidence on the psychological claim was from applicant’s treating physician in psychiatry who found the applicant was 100% permanently totally disabled (“PTD”) and did not apportion disability among the three injuries on the basis they were “inextricably intertwined.”

First, from a tactical perspective, defendant made a decision not to obtain any rebuttal psychiatric report either by use of an AME or PQME. It is assumed from a close reading of the WCJ’s report on reconsideration and the WCAB’s decision (in which they adopted and incorporated the WCJ’s decision), defendant assumed the WCJ would either reject applicant’s psychiatric report as not constituting substantial medical evidence, or alternatively, the 100% PTD would be apportioned per Benson 75% to the CT injury and 25% to the two specifics. Unfortunately for the defense, the WCJ and the Board found the psychological/psychiatric disability was not subject to separate awards of 75% and 25% but must be combined under the “exception” to Benson that in certain limited circumstances a physician cannot parcel out the disability among separate and successive injuries on the premise they are “inextricably intertwined”. The result in this case was a combined award of 93%.

In terms of commentary, the general rule or requirement under Benson is that disability related to distinct, separate and successive injuries should be appropriately apportioned resulting in separate awards. Benson does hold that in certain “limited circumstances” an evaluating physician may not be able to parcel out disability among successive and distinct injuries (example being “inextricably intertwined”), resulting in a combined award. Focusing on the phrase “limited circumstances”, generally one would think there would only be rare and “limited” circumstances to apply the Benson exception of “inextricably intertwined” and a doctor, in order to invoke the exception, would be required to explain in a detailed non-conclusory manner why he or she cannot parcel out the disability among multiple distinct and separate injuries. However, as this case illustrates, a mere conclusory reference to the mantra “inextricably intertwined” invokes the “limited circumstances” exception resulting in a combined award. If the Benson “limited circumstances exception” is not to become the general rule, physicians should be required to explain in detail “how and why” the disability from multiple distinct and successive injuries is not capable of being apportioned.

While the WCJ’s report on reconsideration focused almost exclusively on Benson, the WCAB in its decision, in addition to the Benson issue, focused on an important emerging issue that apportionment determinations in different medical specialties, especially psychiatry and psychology, cannot simply track the apportionment determinations of other medical specialties even in cases involving compensable consequence injuries. One of the primary issues raised by defendant on reconsideration was that applicant’s treating psychiatrist was required to apportion applicant’s psychiatric PTD in the same ratio as did the AME in orthopedics (75%/25%). The Board in this case, as they have in a number of cases in 2014, flatly rejected this argument. (See Caires v. Sharp Healthcare, 2014 Cal. Wrk. Comp. P.D. LEXIS 145 (Appeals Board noteworthy panel decision); ATC/VANCOM, Inc. v. WCAB (Navarro), 79 Cal. Comp. Cases 1329 (writ denied); Sasco Electric v. WCAB (Anemone) 79 Cal. Comp. Cases 1354 (writ denied).

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