California: How Does the WCAB Define “Insidious Progressive Disease”?

In the case of General Foundry Service v. WCAB (Jackson) (1986) 42 Cal. 3d 331, 51 Cal. Comp. Cases 375, the injured worker suffered from the “insidious progressive disease” of asbestosis. Unlike typical workers’ compensation cases, where latency is not an issue, this disease had a latency period and it was an extremely long latency period (anywhere from 20 to 40 years). An injured worker who contracted the industrial disease of asbestosis was not likely to reach permanent and stationary status within the five-year statute of limitation period for determination of permanent disability (PD) by the WCAB under Labor Code sections 5410 and 5804.

Therefore, the California Supreme Court in Jackson, supra, held that the appropriate action in these types of “insidious progressive disease” cases was for the WCAB to tentatively rate the applicant’s PD and to reserve jurisdiction on the final determination of PD, once the applicant became permanent and stationary (or when applicant’s PD totaled 100%).

This classification of “insidious progressive disease” was reserved for cases that included the following characteristics, as thoroughly explained in the WCAB en banc decision of Ruffin v. Olson Glass Co. (1987) 52 Cal. Comp. Cases 335:

“(1) that it [the insidious progressive disease] is caused by a ‘remote’ and ‘undramatic’ work exposure—one that is likely to be undetected at the time, or if detected, the significance is likely to be unappreciated;

(2) that the disease worsens over time, but at a rate so gradual that it is well established before becoming apparent; and,

(3) that it has a ‘long latency period’ between exposure to the risk and the onset of symptomatology.”

Most of these types of cases to date include diseases such as asbestosis, cancer and hepatitis C. The WCAB en banc decision in Ruffin, supra, provides an excellent discussion as to why orthopedic injuries, such as injuries to the knee and back, were not intended to fit within this category of “insidious progressive disease”.

Therefore, it is curious, but appropriate, that in the recent Noteworthy Panel Decision (NPD) of Gault v. Americana Vacation Clubs, Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS 476, the WCAB granted the “insidious progressive disease” status to Mr. Gault’s industrial right knee injury.

In the Gault NPD, the WCAB relied on the Merriam-Webster Online Dictionary definition of the term “progressive” as the corner stone of their analysis. This definition of “insidious progressive disease” seems to be a slight deviation from that created by the court in the General Foundry case.

Nevertheless, despite the language in the Ruffin en banc decision and its progeny, which seems to bar orthopedic injuries from the definition of “insidious progressive disease”, the WCAB in the Gault NPD clearly found Mr. Gault’s industrial knee condition to be included in this group. This designation entitled Mr. Gault to a reservation of WCAB jurisdiction, so that they could increase his PD rating at a later time, if his knee injury worsened, even past the five-year statute of limitation period.

There are several helpful “take aways” for the practitioner from this decision:

PRACTICE TIP #1: This case illustrates an intent by the WCAB to widen the category of eligibility for industrial claims that qualify as “insidious progressive diseases". As a result, practitioners should be mindful of clients with orthopedic injuries who might qualify for this category using the Gault NPD definition and analysis. If appropriate, they should make sure to specifically request WCAB reservation of jurisdiction at trial.

PRACTICE TIP #2: Does the Gault NPD mark a recent trend by the WCAB for using dictionary definitions when analyzing and applying challenging legal concepts? It should be noted that the WCAB also did so, in the case of Larsen v Securitas Services, 2016 Cal. Wrk. Comp. P.D. LEXIS 237. In Larsen, the WCAB referred to “Black’s Law Dictionary”, in order to define the concept of “violent act” as used in Labor Code section 4660.1. Parties should keep track of these “dictionary definitions” used by the WCAB, as they may come in handy for use in other cases. Parties may also wish to offer their own “dictionary definitions” of challenging legal concepts when helpful to their particular legal argument.

PRACTICE TIP #3: The other noteworthy issue in the Gault case is use of the terms “complexity of medical treatment” and “complications” arising from industrial medical treatment. Use of these concepts creates an additional classification of impairment to add to the applicant’s total whole person impairment (WPI.) In this case, the physician addressed the level of WPI attributable to “complexity of medical treatment”, which includes Mr. Gault’s chronic infection in his industrially injured right knee. There is no precise provision in the AMA Guides for rating “industrial infections”. Therefore, the PQME used the PD rebuttal case of Milpitas Unified v. WCAB (Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837, to analogize to a metric in the Guides found in the chapter on Skin, Table 8-2. The PQME stated that Mr. Gault fell into Class II of Table 8-2 (with a possible WPI range of between 10-24%). The physician then explained how applicant met all three of the Class II requirements. He then analyzed the impact of applicant’s injury on applicant’s Activities of Daily Living (ADLs) to determine where in the range (of 10-24%) applicant’s injury fell, to arrive at 20% WPI. Practitioners should study this section of the case very carefully and use it as a checklist for depositions of doctors when trying to illicit the most accurate WPI, when either “complexity of medical treatment” or “complications” from industrial medical treatment is involved.

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