WCAB Adopts Common Sense Approach to Definition of 'Amputation'

Saturday, September 8, 2007 | 0

By Jake Jacobsmeyer

The Workers' Compensation Appeals Board issued an unanimous en banc decision reversing a workers' compensation judge's determination that disc surgery qualified as an "amputation" for purposes of extending the two-year temporary total disability limitations in Labor Code Section 4656(c)(1) to the 240 weeks allowed in Labor Code Section 4656(c)(2). In doing so the WCAB provided a very commonsense definition of what constitutes an amputation for the subsection extending temporary total disability.

In the original trial decision the WCJ had adopted the argument proposed by the applicant attorney that interpreted Labor Code Section 4656(c)(2) very liberally to include in the definition "to cut off, especially by surgery." The WCJ justified the clearly unusual definition of amputation based on the analysis that the:

"In reviewing the other exceptions enumerated in the statute, it appears clear that the legislature intended that temporary disability should continue to compensate injured workers who suffer serious consequences of an industrial injury. The invasive procedures performed on the applicant herein appear to be of a severity that is similar if not equal to the other exceptions contained in the statute."

The WCJ also commented that the termination of TTD in circumstances such as the instant case, spinal surgery with continuing TTD, was contrary to the need of the injured worker to be supported while recovering from a injury that was equally serious is not more so than several of the enumerated exceptions in Labor Code Section 4656(c)(2).

The WCAB reviewed multiple definitions of amputation; all of which referenced the removal of a limb or appendage either by trauma or surgery. Noting that the standard rules of judicial interpretation required:

"We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing them.'" (Citations omitted) "In reading statutes, we are mindful that words are to be given their plain and commonsense meaning." (Citations omitted) We give a statute's words "their usual and ordinary meaning." (Editor removed citations)

Clearly the "plain meaning" of amputation is much more in keeping with the WCAB's well supported line of definitions that the very limited and overly interpreted one of the WCJ. The WCAB, while noting that there may be in inequities in the application of the statutory scheme, pointed out that it is the legislature's role to address the statutory inequities. The WCAB's role is to interpret and apply the legislature's scheme.

There has been several other trial decisions that have attempted to expand the common understanding of what constitutes an "amputation." One decision ruled that removal of a distal clavicle qualified. Another, that removal of a spleen constituted an amputation. In Southern California, a WCJ refused to extend such a definition to the removal of a medical meniscus. The WCAB decision is broad enough to easily cover these cases and none will qualify as an amputation under the holding in this case.

While it can be assumed that either this or another decision of the WCAB will continue up to the next level of appellate review, the WCAB's decision appears to be well supported and well thought out and should prevail. For now, this decision is binding on all trial judges and WCAB panels and must be followed.

Commissioner Ronnie Caplane, while concurring in the result, provided an impassioned plea for the Legislature to review this issue and provide some relief for severely injured workers whose conditions do not qualify for the extended TTD under subsection (2).

The employer community has recognized that there are problems with the rather severe 104 limitation and has supported legislation that would extend the ability to obtain additional TTD in various ways. The issue appears to be not whether there should be some kind of modification to the 104 week limitation, but what kind of modification should be made. Hopefully the Legislature can move past the advocacy positions on this issue and prove a more equitable arrangement.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain, Claffey & Nix and can be reached at jakejacobsmeyer@shawlaw.org.

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