The New Apportionment: Causation vs. Pathology

Saturday, July 3, 2004 | 0

As is often the case, the WorkCompCentral Professional Forum reflects the concerns and observations of the professional workers' compensation community. Recently the change in the legal standard of apportionment has become a topic indicating considerable concern in the professional community, not only reflecting confusion, but a general misunderstanding of the principles of apportionment under the old standard and the new, untested, standard.

Some time ago, WorkCompCentral ran a lengthy treatise on the topic of apportionment authored by the Honorable Mark Kahn, Regional Director, Division of Workers' Compensation. That treatise is more important now than before because, despite the changes in statutory law, the evidentiary principles of apportionment remain the same, and in fact much of the legal principles of apportionment likewise remain unaffected.

As Mr. Kahn noted very early in the first article of his series:

"The employer is responsible only for that portion of an injured employee's disability caused by industrial injuries. The process by which the employer's responsibility is determined is called apportionment. Apportionment is the segregation of the residuals of the industrial injuries from those attributable to other industrial injuries, or to nonindustrial factors (see Hanna, California Law Of Employee Injuries & Workers' Compensation, Revised 2d Edition, Volume 1, section 8.05)." [Emphasis added.]

In the days before SB 899, the employer arguing apportionment needed to show by adequate evidence that, prior to the compensable injury, the employee already had a disability when attempting to compete in the open labor market, or an impairment of earning capacity, or an impairment of the use of a member. These principles were annunciated in three apportionment statutes: Labor Code sections 4663, 4750 and 4750.5.

Now there is only one, 4663, and that has been radically rewritten.

As Mr. Kahn noted in his series, much of the controlling legal standard was refined by a 1979 Second Appellate District opinion, Gay vs. WCAB, Guarantee Collection Service, 96 CA 3d 555, 44 CCC 817. The Gay court wrote that apportionment to pathology was not "legal apportionment", and that the physician must demonstrate "adequate familiarity with the preexisting disability. That is, the physician must describe in detail the exact nature of the preexisting disability and the basis for such an opinion in order for the Board to be able to determine that the physician properly apportioned under correct legal principles."

That standard has not changed. Indeed, one could argue that, but for a shift in focus away from the labor-disabling standard, nothing has really changed about apportionment despite the legislative fiat that causation is now the controlling standard.

Mr. Kahn summarized the old analysis of apportionment this way:

"When considering apportionment under L.C. 4663, whether the employee was asymptomatic is irrelevant. On the other hand, L.C. 4750 requires that the employee have an actual disability pre-existing the industrial injury. Here the issue of whether or not the employee was symptomatic is very important. If the employee was symptomatic prior to the industrial injury, it may show that he had disability pre-existing. If the employee was not experiencing prior symptomatology, that could demonstrate that he had no disability pre-existing the industrial injury. ...[An] example would be an employee with a prior workers' compensation award for an old injury which resulted in a work restriction of no heavy work. If he was asymptomatic prior to the industrial injury, that may be evidence that there is no prior disability. However, if the employer can show that the employee continued to observe his work restrictions, and that the reason he was asymptomatic was that he continued to work in an environment congenial with his restrictions, apportionment could be proper (Callahan v. WCAB, 43 CCC 1907).

"To apportion under L.C. 4750, there must be an event or condition that led to disability which pre-existed the industrial injury. That condition or event could be a prior industrial injury, a non-industrial accident, a disease, or a situation in which the employee merely developed pain, atrophy, limitation of range of motion, or loss of visual or hearing acuity. It is possible that the employee suffered from a congenital defect which caused disability.

"Once the determination is made that there was some event or condition that existed prior to the industrial injury, the defendant must then show that this event or condition was actually disabling immediately prior to the compensable injury.

"Pre-existing disability can be established by proving that the employee was receiving medical treatment for the condition or event prior to the industrial injury. Medical records showing that the employee had consulted a doctor and complained of pain is evidence of pre-existing disability. Evidence that the employee missed time from work prior to the industrial injury due to pain or discomfort in the same part of the body alleged as the industrial injury, demonstrates pre-existing disability. Testimony from the employer that the employee complained of pain following a day's work is evidence of pre-existing disability.

"Pre-existing disability cannot be established by imposing a retroactive, prophylactic work restriction due to a pre-existing condition after a subsequent industrial injury occurs, unless the worker was actually restricted in his work activity prior to the industrial injury (Franklin v. WCAB, 43 CCC 310; Amico v. WCAB, 39 CCC 845). However, where the injured worker was actually under a prophylactic restriction for a pre-existing condition or event at the time the subsequent industrial injury occurs, apportionment to pre-existing disability is proper. It is only the retroactive application of a prophylactic restriction to an otherwise non-existent previous disability that is prohibited (Bookout v. WCAB, 41 CCC 595).

"There can be objective evidence of a pre-existing disability, such as an amputation, or that the employee restricted his activities. For example, this evidence might be in the form of testimony from the employer that the employee stated he had back problems and would not do certain types of lifting or lift certain weight. This could be valid evidence of a preexisting disability."

Frankly, Mr. Kahn's description of apportionment under the now defunct Labor Code section 4750 does not appear to be any different in terms of practical application than the new causation standard set forth in 4663, as amended.

As mentioned above, the new standard is causation. One dictionary definition of causation is:

"Main Entry: cau-sa-tion
Pronunciation: ko-'zA-sh&n
Function: noun
1 a : the act or process of causing
b : the act or agency that produces an effect
2 : the relation between cause and effect esp. as an element to be proven in a tort or criminal case -see also CHAIN OF CAUSATION
Merriam-Webster Dictionary of Law, (c) 1996 Merriam-Webster, Inc.

In apportionment terms under the new legal standard, then, there must be a demonstrable cause and effect that can be validated with medical certainty. The physician must show with medical certainty based on his or her expert medical opinion that some pre-existing condition, injury or disability caused all or a part of the new disability if an apportionment comment is to be upheld under judicial scrutiny.

Apportionment based on pathology, or "the anatomic and physiological deviations from the normal that constitute disease or characterize a particular disease" (Merriam-Webster Medical Dictionary, (c) 2002 Merriam-Webster, Inc.), is still improper and will not stand the test of judicial review.

The question to ask yourself as you prepare your medical report is, "But for the industrial injury, would the injured worker have this disability at this time? Unless you can answer in the affirmative, there is no apportionment.

The bottom line medical discussion on apportionment must specifically deal with cause and effect, and still cannot rely on pathology. That a pre-existing condition eventually would have caused disability is immaterial to the existence of disability following a compensable injury. If the injured worker was able to perform duties prior to the industrial event without evidence of disability, then there cannot be any apportionment. If, as Mr. Kahn discussed and as quoted above, there is evidence of disability that inhibited function just prior to the industrial event, then apportionment is proper.

Article by David DePaolo, President and Senior Editor, workcompcentral.com.

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