Green v. City of Los Angeles: Refresh of Apportionment

Rejection of the Black Box Approach

By Charles Edward Clark, Esq.¹

INTRODUCTION

In the years since E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687], apportionment analysis has been plagued by the “black box” problem. The medical doctor reviews records — the inputs — and renders conclusions as to the percentages of apportionment to industrial and nonindustrial factors — the outputs — and backs this up by the self-professed claim to his or her judgment and experience. But this impregnable methodology is hidden in the black box of the medical doctor’s mind as to the basis of his conclusion until Green v City of Los Angeles, Department of Airports 2013 Cal. Wrk. Comp. P.D. LEXIS 549 (Appeals Board noteworthy panel decision) rejected this faulty method.

GREEN’S FINDS INADEQUATE APPORTIONMENT DETERMINATION

The black box closed shut in Yeager/Gatten. In this case which was decided after enactment of SB 899 changing the law of apportionment by allowing apportionment to pathology, the applicant had occasional back pain and 2 or 3 chiropractic treatments before the industrial injury. There were no prior awards, periods of disability or modified work due to nonindustrial injury. The Agreed Medical Examiner (AME) apportioned 20% to nonindustrial factors based on his review of an MRI showing preexisting degenerative conditions. The Court of Appeals annulled the decision of the WCAB and held that this apportionment determination was proper.

To the debate, the Court added this in its opinion at p. 930: “His [the AME’s] conclusion cannot be disregarded as being speculative when it was based on his expertise in evaluating the significance of these facts.”

After this, AMEs and other medical doctors reviewed the medical records, provided percentages of apportionment to industrial and nonindustrial factors, and then when asked how they were determined in deposition or supplemental reports, they asserted that it was in accordance with their judgment and expertise without disclosing the computational analysis beneath this level of how these percentages were measured and why. Far too often, the WCAB upheld this method.

In Green supra, in an exceptionally well-reasoned and well written opinion by Commissioner Frank M. Brass, the WCAB ruled that this superficial conclusion was not good enough.

The Applicant in Green supra was a police officer with an admitted cumulative trauma injury from August 20, 1979 to June 2, 2009. The parties selected Dr. Robert Meth, an internist, to serve as the AME for the internal issues, which included hypertension and a pulmonary disorder.

Dr. Meth evaluated the Applicant and issued an initial report in which he detailed the history of the internal injuries. He noted that the Applicant suffered from hypertension, had a family history of it (his father was afflicted and died of a stroke at 62), and was overweight by at least 20 lbs. He also had pulmonary interstitial fibrosis which lead to impaired lung function and capacity and eventually to a lung transplant. He found that there were industrial hypertension and pulmonary injuries.

For apportionment of the hypertension disability, Dr. Meth wrote that “(h)is hypertension should be considered 80% industrially related secondary to work-related stress and 20% nonindustrially related secondary to his genetic predisposition to this disorder and his mild obesity.”

Dr. Meth concluded that there was also occupational exposure to volatile organic compounds and to carbon particulates resulting in the pulmonary injury with the following apportionment percentages:

“[H]is pulmonary disorder should be considered 80% industrially related secondary to work-related exposures and 20% related to his underlying allergic diathesis.”

This apportionment percentage was contained in his initial report and all of his other reports referred back to this one, and there was no explanation of the how and why of this determination as required by Escobedo v Marshalls 70 Cal. Comp. Cases 604 (2005). Although the Board did not say this, Dr. Meth’s conclusion was a rhetorical tautology.

In holding that Dr. Meth’s reports did not constitute substantial evidence, Commissioner Brass acknowledged Yeager/Gatten and then referred, for support of deeper Escobedo analysis, to this rule of the California Supreme Court: “The chief value of an expert's testimony ... rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; ... it does not lie in his mere expression of conclusion; ... the opinion of an expert is no better than the reasons upon which it is based. (People v. Bassett (1968) 69 Cal.2d 122.)”

GREEN AND SUBTANTIAL EVIDENCE OF APPORTIONMENT

The AME’s opinion in Green supra was evidence of correlation and association and not of causation in compliance with Labor Code § 4663(a) which provides that “[a]pportionment of permanent disability shall be based on causation.”

“Correlation is not causation” as the U.S. Supreme Court held in Norfolk & Western Railway Co. v Ayers (2003) 538 U.S. 135 at 173.

The scientific method aids in this determination. In Scientific Method in Practice (Cambridge University Press) by Hugh G. Gauch Jr., Gauch argues that scientific investigation must be open, as the Board in Escobedo demands with its how and why. On page 124, Gauch wrote that “a given scientific argument may be good or bad, and its conclusion may be true or false. But in any case, the first step in assessing a scientific conclusion is merely to disclose the argument fully. Then each and every piece of the argument can be inspected carefully and weighed intelligently, and every participant in the inquiry can enjoy clear communication with colleagues.”

Added to this, the investigation has to be verifiable and reproducible. Merton, R.K. "The Normative Structure of Science". In: Merton, R. K., The Sociology of Science: Theoretical and Empirical Investigations, Chicago, IL: University of Chicago Press, 1942; see also “Scientists on Science: Reproducibility,” Ars Technica by John Timmer October 25, 2006.

In the closed subjective system of the doctor’s conclusions in Green supra, there is no full disclosure or anything which is verifiable and reproducible, and his approach negates the discovery of the how and why of his analysis of apportionment and of causation of permanent disability. Whether intended or not, it prevents the judge from performing his or her truth seeking and truth determining functions by not letting the judge see how causation of the percentage of permanent disability was established. From this absence, it is reasonable for the judge to infer the nonexistence of causation.

To demonstrate that there is causation, though, and that it is not a correlation or the product of speculation, a medical doctor’s 20% or any other percentage must be broken down into its constituent units by reference to the specific evidence of the nonindustrial injury or disorder and the permanent disability it allegedly causes, and the medical doctor should fully reveal how and why each unit is causally connected to the permanent disability with the identification of computational reasoning and analysis. Pursuit of the doctor should be made with such inquiry as to why 20%, why not 50%, or why not 10% until the smallest part of this, traced below the level of the doctor’s unexplored conclusions in Green supra and down to its predicates, is exposed and causation is clearly and understandably defined. In that way, only can it be verified and the judge can decide that a reasonable medical doctor would be able to reproduce these results. This is an objective method and not the subjective one employed in the black box approach.

The intense struggle is over pathology by which an inactive disorder with little, if any, effect on daily life is claimed to reduce permanent disability. When the Legislature enacted SB 899 and changed the law of apportionment, it did not use such words that state or suggest that if there is nonindustrial pathology it automatically causes permanent disability. No presumption was employed by the Legislature unless there was an award and then in the manner provided by Labor Code § 4664 and its case law. Causation is the standard in Labor Code § 4663 regardless of the type of nonindustrial injury or disorder or the lack of any.

The burden of proof is still on the employer to prove any apportionment; see Kopping v WCAB 142 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229 (2006).

If a doctor is to legitimately assign apportionment to inactive pathology after Green, thorough analysis of all of the evidence below the conclusions is essential. Pointing to a family history of high blood pressure or degenerative changes on an MRI and labeling that with a percentage of nonindustrial apportionment or the like are inadequate.

Footnote:

1. Research assistance was provided by Diane Hernandez, J.D., a recent law school graduate.

© Copyright 2014 Charles Edward Clark, Esq. All rights reserved. Reprinted with permission.