Merle C. Rabine on CA WCAB Panel Decisions Re Overlap, Refusal of Medical Treatment

Merle C. Rabine on CA WCAB Panel Decisions Re Overlap, Refusal of Medical Treatment

Recent interest in California Workers' Compensation Appeals Board panel decisions has been fueled by continuing uncertainty of interpretation of parts of Senate Bill 899 and by discussion and debate on the Internet.

 This commentary, written by Merle C. Rabine, the past Chairman of the Workers’ Compensation Appeals Board, examines recent panel decisions, one involving "overlap" between factors of disability in the 1997 and 2005 Permanent Disability Rating Schedules, and the other involving unreasonable refusal to submit to surgery under Labor Code § 4056.  In both cases, the employers failed to sustain their burden of proof of affirmative defenses.

Mr. Rabine points out that, as a practical matter, defendants should not expect to prevail on apportionment under Labor Code § 4664 when the current injury is rated under the 2005 PDRS and the prior injury under the 1997 PDRS unless they can demonstrate that the factors of disability for the prior injury are the functional equivalent of the impairments measured according to the AMA Guides.  When the current and prior injuries are to the same body part, it may be possible to examine the medical reports used to arrive at the ratings in the prior awards to see whether descriptions and measurements can be rated under the AMA Guides, even though the AMA Guides were not in use at the time that the medical reports were produced.  When the current and prior injuries are to different body parts, it is hard to imagine how the factors of disability can be found to overlap. 

Mr. Rabine further points out that, in the present medical climate, it is much more likely that applicants will be subjected to unnecessary treatment than that they will refuse required treatment.  An applicant might refuse needed treatment based on religious principle, and that would be a difficult case.  Otherwise, it is very unlikely that a WCJ or a commissioner will conclude that refusal to undergo surgery is unreasonable.  This is a defense that is seldom raised and almost never succeeds.  The defense burden of proving unreasonable refusal is a very steep, uphill burden.  In almost all cases, raising this defense is likely to be a waste of energy.

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