Calling it Like they See it

Friday, April 10, 2015 | 0

Like the umpire in a baseball game, the role of a workers' compensation judge and the Workers' Compensation Appeals Board is to look at the evidence and make a judgment call based on what they see. We often hear complaints that an umpire’s calls are not consistent, making it hard for the players to know what the rules are. The same can sometimes be said of the WCAB, as shown by three recent panel decisions all having to do with the issue of apportionment.

On Jan. 15, the Board issued a decision in the case Walter v. International Capital Group. Based on orthopedic and psyche medical reports, the applicant’s permanent disability rated at 57%. The applicant then obtained a report from a vocational expert who found that applicant was unable to return to gainful employment. Based on that report, applicant asserted she should be found 100% permanently disabled per Ogilvie and LeBoeuf. The WCJ found that the vocational evaluator’s report did not constitute substantial evidence because he did not take into account the orthopedic AME’s apportionment of disability in forming his opinion. Finding that applicant’s evidence did not rebut the rating, the judge awarded permanent disability of 57%. On reconsideration, the Board agreed that the vocational evaluator’s report did not constitute substantial evidence because he did not consider apportionment. However, finding that there was evidence that applicant’s disability was greater than the standard rating, the Board determined that the record needed to be further developed and sent the case back to the trial level with instructions that the parties obtain a report from a joint vocational evaluator.

On Feb. 25, the Board issued its decision in the case Aima v. Buestad Construction. In a decision which appears to be the exact opposite of Walter, the Board affirmed a WCJ finding of 100% permanent disability based on a vocational evaluator’s report. In that case, as in Walter, the orthopedic AME apportioned the disability and the vocational evaluator did not take the apportionment into account in forming his opinion. However, the WCJ found that the AME’s apportionment finding was not substantial evidence because there was insufficient evidence in the record to support his conclusions.

On March 3, the Board issued its decision in the case Dileva v. Northrop Grumman Systems Corp. Like the other two cases, this case involved claims of orthopedic and psyche disability. The relevant evidence at trial consisted of an orthopedic AME report, which apportioned disability among three injuries, and a psyche treater’s report in which the psyche treater found that the injuries were “inextricably intertwined” and as a result he was unable to apportion the psyche disability. 

Relying on the psyche treater’s conclusion that the psyche disability was “inextricably intertwined,” the WCJ found that all of the disability was “inextricably intertwined” and issued a single award of 96% permanent disability. Defendant sought reconsideration, asserting that the WCJ’s decision was not based on substantial evidence because the psyche treater failed to address apportionment and was inconsistent with the orthopedic report. On reconsideration, the Board made a point of noting that the case went to trial on defendant’s Declaration of Readiness, there had been no effort to challenge the psyche treater’s report by getting an AME or QME evaluation, and defendant has the burden of proof on the issue of apportionment. 

In a divided opinion, the Board affirmed the WCJ’s decision. Commissioner Lowe dissented. In her opinion, the WCJ and the Board erred because they disregarded the orthopedic AME’s apportionment finding. She would have returned the matter to the trial level to have the record further developed on the issue of apportionment of the psychiatric disability, since the psyche report was inconsistent with the orthopedic report

Although these opinions appear to be inconsistent, they do have a common theme. That is that it is important to make sure your record is fully developed before you take a case to trial. Since it is the defendant’s burden to establish apportionment, it is important to make sure that any unfavorable opinions on that issue are fully evaluated, and corrected if possible, before taking the case to trial.

Mullen & Filippi is a workers' compensation defense firm with 15 offices in California. This column was reprinted with the firm's permission from its quarterly Mullen & Filippi Bulletin.