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Cotter: To Parcel or Not to Parcel

By Jim Cotter

Thursday, August 30, 2018 | 362 | 0 | min read

Imagine going to a restaurant with your friends and not knowing until the end of the meal what portion of the check you’re going to have to cover or even how the check will be itemized.

James Cotter

James Cotter
(Mullen & Filippi photo)

This is similar to parties in the workers’ compensation system faced with multiple injuries and overlapping body parts.

Ever since the passage of SB 899, litigation as to apportionment has been endless; trial judges and the Workers' Compensation Appeals Board continue to struggle with application of the facially simple principles set forth by Labor Code 4663 and Labor Code 4664.  

From the applicant’s perspective, apportionment between two injuries only serves to reduce awards and can mean the difference between a life pension and two large awards. 

When faced with a particularly challenging case, many doctors have avoided the careful determinations as to apportionment required by Benson. they have seized on the phrase “inextricably intertwined” to avoid an apportionment analysis, despite the fact that the phrase does not appear in the Benson decision itself. 

A panel of three commissioners with the WCAB has now incorporated the phraseology into a possibly far-reaching, but non-binding decision: Herrera v. Maple Leaf Foods.

It gets complicated

Applicant, a baker, was fixing a box-sealing machine on Oct. 15, 2002, when his right arm became caught in the machine and he jerked it free, lacerating tendons in his right index finger and causing back and shoulder injuries. 

Upon returning to work, his modified job duties caused additional injuries and aggravated the original injuries. Accordingly, applicant was taken off work on Jan. 2, 2003. Applicant claimed both a specific and a cumulative trauma injury.

Parties commenced discovery and utilized agreed medical examiners to address the orthopedic, internal and psychiatric claims. The orthopedic examiner was able to apportion between the two injuries; the other two evaluators opined that apportionment between the two injuries would be speculative and/or inexorably intertwined. 

The claims proceeded to two separate trials wherein awards of 68% permanent disability and 39% disability issued. There are more complicating factors in the decisions, but they aren’t relevant to the significant portions of the decision.

Sometimes too complicated

All parties filed petitions for reconsideration. The WCAB rescinded both of the findings and awards and issued a joint findings and award decision that applicant’s combined permanent disability in both cases is 83% after non-industrial apportionment, and that disability could not be parceled out under the Benson decision.   

Enshrining the magical phrase “inextricably intertwined,” the three commissioners opined that a combined award must issue when there are some aspects of industrially caused disability (in this case, the psychiatric and gastrointestinal disability) from two or more separate industrial injuries, that cannot be parceled out between two injuries because the disability born of one injury is inextricably intertwined with the disability from the other.

Same result even where other aspects of disability (in this case, the orthopedic disability) could be parceled out with reasonable medical probability.  

The WCAB quoted the Brodie decision establishing that Labor Code sections 4663 and 4664 established a new regime of apportionment requiring medical legal evaluators and triers of fact to parcel out the causative sources of disability. The WCAB emphasized, however, that the burden of proving apportionment still rests with defendants, quoting the Benson decision.  

Apportionment in a time of inextricably intertwined

Herrera was very carefully authored by the WCAB and has the potential to change the way applicants and employers approach cases. Applicants would likely focus medical/legal discovery on conditions and body parts that are famously difficult to apportion (i.e., psyche or internal medicine conditions). Doing so provides an opportunity to maximize their recovery. 

It is unknown if Herrera will be appealed. Please note this is only a decision after a petition for reconsideration and is not controlling precedent.    

Jim Cotter is an associate partner in Mullen & Filippi's Oakland office.

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