Hegglin, Mihesuah & Morgan: Duplicate Disability

Monday, September 2, 2002 | 0

In the case of a single injury causing disability to multiple parts of the body, the question is whether there are duplicating factors of disability. In the case of Hegglin v. WCAB, 36 CCC 93, (the Hegglin holding was rejected in the cases of Mihesuah and Morgan, see below), the injured worker fell, injuring his back, and as a result of the back surgery, he developed hepatitis. For the back disability, the employee was given a restriction of no heavy lifting and for the hepatitis a restriction of no heavy lifting after several hours of exertion. The court in Hegglin ruled that the way to apply duplication was for the disability evaluator* to put each of the disabilities through the Multiple Disabilities Table (MDT). In Hegglin the court ruled that this situation did not involve apportionment under L.C. section 4750 because there was no pre-existing disability, and therefore both disabilities should be checked against the MDT, and the table takes duplication into account. Under the Hegglin rationale, the permanent disability specialist is to rate out both 30 percent standards if the disability is no heavy work for the back and no heavy work for the knee, then combine them on the MDT. This would result in a greater disability for the employee than if one of the work restrictions is eliminated because it is duplicative.

In the case of Mihesuah v. WCAB, 41 CCC 181, the employee was given a chest disability of light work and a left knee disability of semi-sedentary as a result of a specific injury. The 50 percent standard disability for the chest would have adjusted to 56 percent and the 60 percent standard disability for the knee would have adjusted to 69 percent. Running the two disabilities through the MDT would give a rating of 92 percent if the theory of the Hegglin case was applied. In this case, however, the disability evaluator gave a 70 percent standard. The disability evaluator* gave a 60 percent standard for the knee and a tenpercent add-on for the chest, considering the rest to be duplicating factors of disability. The question is, which was the correct rating and did the disability evaluator under Hegglin have to use the MDT? The court ruled ￯ﾾﾓno￯ﾾﾔ that the MDT was only a guide and the disability evaluator could rely on his expertise in considering duplication. The court, therefore, agreed with the 70 percent standard.

In the case of Morgan v. WCAB, 43 CCC 1116, the employee, as a result of one injury, had a light work restriction for a hernia and a light work and no emotional stress restriction for hypertension. The disability evaluator gave a 50 percent standard for the hernia, but only a 20 percent standard for the hypertension because of duplication. The employee objected. The disability evaluator testified that the 50 percent standards for the hernia and the hypertension duplicated and therefore the disability evaluator gave only a 20 percent standard for the hypertension. The disability evaluator further testified that the MDT does not take into account overlap. Morgan argued that Hegglin should apply and the court should have run a 50 percent standard and a 60 percent standard through the MDT, which would then result in 96 percent disability. The court in Morgan reversed and remanded the matter back to the Appeals Board for taking further evidence. In Morgan, the court ruled that the disability evaluator need not use the MDT. The court, in Morgan, said that the Board must fully describe all the factors of disability and then the disability evaluator, taking into account the entire picture, must decide whether to consider duplication or just use the MDT. According to Morgan , the judge puts all the factors of disability into the rating instructions and the disability evaluator then analyzes the case to determine if the employee's factors of disability duplicate. If they do not, the MDT will be applied, and if they do then the MDT will be applied only after taking into account duplication.

The next article in this series will discuss how to identify duplication where an injury causes multiple disabilities to a single body part.

Mark Kahn is a Regional Manager for the Department of Workers' Compensation, Division of Industrial Relations, State of CA.

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* Disability evaluator refers to a disability rater employed by the Disability Evaluation Unit of the Division of Workers' Compensation. Previously they were known as disability evaluation specialists and raters.