Dos & Don'ts: What the Judge Wants to See Part 6

Saturday, September 25, 2004 | 0

This is the final article in a series of six by San Diego Workers' Compensation Judge Susan England, reprinted here with permission from the California Society of Industrial Medicine (CSIMS). These articles were first presented as a single paper at the CSIMS conference held in San Diego, June 25-27, 2004. The first article reviewed the evidentiary status of medical reports in the workers' compensation system. The second article reviewed issues with treating reports. The third article began a review of problems with P&S reports, focusing on objective and subjective disability descriptions. The fourth article finished that discussion by reviewing work restrictions. The fifth article discussed ACOEM and Utilization Review. This installment reviews permanent disability assessment by either a treater or evaluator. Earlier articles can be accessed by clicking on the title in the right side bar.

The opinions stated in this article do not represent the stance of the Workers' Compensation Appeals Board, its administration or any other person except the author.

Contributed by California Workers' Compensation Judge Susan England.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.

Permanent disability assessment (treater or evaluator):

APPORTIONMENT: (Labor Code Section 4663)

Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury, must address the issue of causation of disability. We now have apportionment of disability by causation. For this type of apportionment, the underlying pathology may be considered.

Since this aspect of the law was given retrospective application and since it is likely the constitutionality of the provision will be tested, you may wish to undertake an analysis of apportionment in terms of prior work disablement (the old law) as well as an analysis by causation (the new law) for dates of injury prior to April 19, 2004.

In determining apportionment by causation, you must determine the approximate percentage of the permanent disability that was caused by the "direct result of injury arising out of and occurring in the course of employment" and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. The exact meaning of the amendment of the apportionment sections of the code is not clear.

Defendants argue that any underlying pathology must result in apportionment of the disability. However, the legislature did not clearly state that in the amendment. Instead the legislature still referred to apportionment of disability. It would seem that if an underlying condition had not caused disability then no apportionment of disability should occur. If that is the correct interpretation then we are still left with the proposition that all disability in place but for the industrial injury, must be apportioned to the industrial injury. This interpretation would continue the employer's liability for egg-shell employees where the industrial injury made symptomatic or lighted up and underlying disease or pathologic condition that previously was asymptomatic. This issue will be a hotly litigated one that probably will take either clean up legislation or clarifying interpretation by appellate courts. In the meantime, since the liberal construction of the law (Labor Code Section 3202) was not amended, any ambiguity in the law must be interpreted in favor of the injured worker.

An employee has now been given the obligation, upon request, to disclose all previous permanent disabilities and physical impairments. It is not known how this provision interacts with confidentiality laws previously enacted on both the state and federal levels.

If the injured worker has received a prior award of permanent disability it is conclusively presumed that he was still disabled at the time of the new injury. This is also an area that requires clarification as there is no vehicle for translating old disability awards into disability under the AMA Guidelines, once they take effect. A further issue exists as to whether a prior Compromise and Release of a case will result in any apportionment.

Medical-Legal Procedures:

The law with respect to unrepresented injured workers has not changed too significantly other than to require a panel for all issues and once again limiting the injured workers' rights to obtain further medical evidence once he gets an attorney.

However, for represented injured workers, on January 5, 2005, the new Labor Code Section 4062.2 will be in effect. Essentially the parties will either use agreed medical examiners on all issues, or will be constrained to use a panel of three doctors appointed by the administrative director. Once the panel is provided the parties can choose one of the three doctors to do the evaluation or, if no agreement is reached the parties get to strike names from the list in rotation and the last physician remaining is the evaluating doctor. In the event one party fails to strike a name from the list, the other party can choose the examiner from the physicians remaining.

It appears that if there are multiple defendants on a case they either have to agree on whom to strike, give up their right to strike, or beat each other out for the privilege of responding.

The practice of industrial law and medicine will be a challenge over the next few years during which the courts will be determining the applicability of the law to all injuries and its constitutionality. These will be trying times for all of us - meaning both that the law is presenting many challenges but also that such challenges encourage and even necessitate litigation.

Contributed by California Workers' Compensation Judge Susan England.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.