Keeping Apportionment A Medical Issue

Saturday, August 27, 2005 | 0

LC section 4663 & WCAB EN-Banc Decision Escobedo vs. Marshall's & CNA Insurance

Apportionment caused by other factors may include not only disability that could have been apportioned to prior industrial injuries, but may also include apportionment to pathology, asymptomatic prior-conditions and/or retroactive prophylactic work preclusions. There must be substantial medical evidence establishing that the avocational factors have caused permanent disability. The medical report must address the issue of apportionment by describing the approximate relative percentages of Industrial and Non-Industrial Causation under LC section 4663(c).

Apportionment does not become an issue until the doctor has determined (1) that there was an industrial injury and (2) that the injury caused some degree of permanent ratable impairment.

In your letters, Ask Physician: 1. Please discuss your findings on any apportionment to non-industrial (avocational) or pre-existing factors (pathology) as required by the recent decisions of the WCAB. Apportionment to factors that previously could not have been apportioned-to, including pathology and asymptomatic pre-injury conditions is now permitted. The Escobedo decision provides that any conclusion regarding apportionment must be supported by substantial medical evidence establishing that these factors have caused permanent disability. The Board concluded that to be considered substantial evidence, your opinion about the approximate percentage of PD due to the direct results of the injury and the "approximate percent" of PD due to other factors, must be:

1.1. Framed in terms of reasonable medical probability;
1.2. Based on pertinent facts and on an adequate and history; and
1.3. It must set forth reasoning in support of its conclusions;
1.4. It must not be speculative.

The court stated that the physician must explain how and why the other factors are causing permanent disability at the time of the evaluation, and how and why they are responsible for an approximate portion of the disability. When the report is in, ask the following questions: 2. For avocational and pre-existing pathological findings:

2.1. Q: Has evaluating physician considered avocational factors, findings and symptomatology independent of the permanent disability due to vocational (industrial) causation? For example, has physician considered pre-existing objective pathology, symptomatology, work limitations secondary to pre-existing disability, including time off from work or need for treatment?

2.2. Q: Has evaluating physician provided a well-reasoned opinion based on the review of the medical records, the medical and treatment histories and the examination findings?

2.3. Q: Is evaluating physician's approach to apportionment truthful, based on common sense, clinical experience and knowledge of medical-legal principles, with a well-reasoned opinion that shows a thorough consideration of all the relevant facts? Or is the opinion's validity suggestive of the physician's interest of pleasing the referral source? (Refer to Examples 5 & 6)

LC section 4663 - Apportionment Language Examples
Examples 1-5 are from California Doctors. Example # 6 is from an out-of-state 'expert'.

Q: Which three of the following 6 examples do you think abide to the guidelines established by the WCAB/s en banc decision?

1. The basis for the patient's injury is industrial. One of the questions asked is whether or not there is a precipitating cause for all or part of this disability. In this case, the patient has a history of carpal tunnel syndrome dating back to 1996 such that apportionment is a proper consideration. According to Labor Code 4663(B) and (C), pathology in and of itself/ pre-existing or not/ may not be considered for apportionment unless there is evidence that the patient sustained some level of disability as a result of this pre-existing pathology. In this case/ the reasoning applies. This patient has a. prior history of carpal tunnel syndrome, which reasonably could have been expected to result in disability at some time should it not respond to treatment or should the patient decline the treatment, what treatment the patient has had has not been successful. Other treatments known to be successful in this sort of situation, carpal tunnel release/ have been declined. An. intermediary procedure, carpal tunnel injection, was also not successful. The patient has reached maximal treatment benefit from acupuncture, which she has tried for six months. Therefore in this situation, there is evidence of prior impairment and previous causation even if there is no evidence that the patient was ever put on permanent disability before. In my opinion, 50% of the patient's current disability reflects prior causation and previous impairment. 50% is vocational and related to both the specific and cumulative trauma periods.

2. Mr. IW has a disability to the shoulders that occurred as a consequence of arthritic changes and the attritional changes of aging associated with the cumulative effects of repetitive strain over the years. This apparently initially precipitated some disability about the shoulders in 1996. It was noted that Mr. IW then developed some symptoms about the right elbow sometime in 2003. This similarly appears to have occurred as a consequence of repetitive stress and strain to the elbow. There is possible contribution by neurofibroma to the right elbow but this could not be determined with any high degree of certainty. I am of the opinion that the disability to the shoulders and right elbow is apportionable. Approximately 75% of the disability outlined above to the shoulders, upper torso and upper extremities would be related to cumulative trauma occurring up through Mr. IW's last day of vocational injurious exposure of November 2004.

3. With respect to the lumbar spine, this patient has evidence of pre-existing degenerative disc disease of the lumbar spine. It is medically reasonable that even absent the industrial injury on June 2, 2003, 2/3 of her current disability would be present today as a result of the pre-existing degenerative changes of the lower lumbar spine and its natural progression. 1/3 of her current disability is related to the effects of the Industrial injury on June 2, 2003.

4. The above work preclusions are, in large part, prophylactic for the prevention of recurrent injury in light of his early disc degeneration. I conclude that 75% of his current impairment and work restrictions should be apportioned to preexistent non-industrial causes and 25% to the effects of his specific injury at work on June 3, 2004. My opinions on apportionment comply with Labor Code Sections 4663 and 4664.

5. The City & County of XX has employed Ms. XX for over 25-years and so it is my opinion, to a degree of medical probability, that zero percent of any disability described, or which may accrue in the future, will be related to pre-existing non-industrial medical condition. Rather, it is my opinion that 100% of the permanent disabilities present in this case, and which will likely accrue in the future, is a direct result of this patient's employment with the City & County of XX on a cumulative-trauma-basis continuing through August 27, 2003. I would reiterate my opinion that all additional disability described in this report is the result of cumulative exposure through August 27, 2003, as it would be speculative of me to attempt to ascribe any residuals to any specific industrial injuries.

6. In terms of the spine, it is probable that his pre-existing cervical degenerative disease and his injury of April 16-2004 played a role in his spinal dysfunction and associated impairments. He is a smoker that is a significant risk factor. It appears reasonable to assign half (50%) of his difficulties to his injury and 50% due to other factors, including his pre-existing disease.

by Luis Perez-Cordero, MA, AAPMR. Luis can be reached at pdrating@pacbell.net.

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