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WCAB Continues to Outline New Apportionment
Procedures
By Robert B. Hill, Esq.
In a panel decision issued July 15, 2005, the WCAB has granted
reconsideration for purposes of obtaining clarification in the
record as to the apportionment given by an Agreed Medical Examiner
(which was then incorporated into a Findings and Award), and in the
process has given specific guidelines as to how physicians are to
address the new apportionment guidelines post-SB899.
In the Matter of Santiago Raya v. Aranda Tooling, Inc. (LBO
0302966), the applicant sustained an admitted injury of May 4, 1999.
Following the hearing, a Findings and Award issued for 56¾%
Permanent Disability, after apportionment given by the AME, Dr.
Joseph Alban. Noting that Dr. Alban had apportioned 20% to the
“natural progression of the degenerative joint disease,” the
Workers’ Compensation Judge (WCJ) incorporated this apportionment
into his final decision, noting that based on the limitation to
“semi-sedentary work” and “the use of a cane when ambulatory” the
AME report would otherwise take a 65% standard rating.
The Applicant sought reconsideration to the Findings and Award,
arguing that Dr. Alban’s report did not represent “substantial
evidence” on this issue in light of the new standards set forth
under SB899 and the recently issued case, Escobedo v. Marshall’s
(2005) 70 CCC 604 (en banc).
The WCAB panel first took note of Dr. Alban’s opinion on
apportionment as set out in his August 8, 2003 report, Page 21, as
follows:
“The applicant’s disability is a combination of the specific
industrial injury, as well as the natural progression of
degenerative arthritis affecting the lumbar spine. The narrowing of
his spinal canal has occurred over many years as a result of bony
hypertrophy related to degenerative joint disease. Absent the
specific injury, he would have 20% of the present disability on a
non-industrial basis as a result of the natural progression of the
degenerative joint disease. 80% is apportioned to the specific
industrial accident.”
The panel then confirmed the retroactive
application of the provisions of SB 899, as set out in the new
provisions of Labor Code Sections 4663 and 4664, to be applied to
all cases regardless of date of injury, not yet final at the time of
the legislative enactment on April 19, 2004. This portion of the
decision was consistent with an earlier holding by the Fourth
District Court of Appeal in Marsh v. WCAB (2005)__Cal.App.4th, 70
CCC__.
The panel next applied the apportionment standards to be applied as
set out in Escobedo as follows:
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The applicant continues to have the burden of proving, by a
preponderance of the evidence, both the overall level of permanent
disability and that of at lease some of the disability was
industrially caused.
• The applicant also has the burden of proving the approximate
percentage of permanent disability directly caused by the injury
[Labor Code Section 5705; Evidence Code Section 500].
• The defendant has the burden of establishing the approximate
percentage of permanent disability caused by factors other than the
industrial injury.
• The defendant has the burden of proving that the apportionment is
appropriate [Pullman Kellogg v. WCAB (Normand) (1980) 45 CCC 170.]
• The mere fact that a report addresses the issues of causation and
makes an apportionment determination by finding the approximate
relative percentages of industrial and non-industrial causation,
does not render the opinion substantial evidence, unless it sets
forth the reasoning behind the physician’s opinion, not merely the
conclusions. Further, the opinion must be based on reasonable
medical probability and not speculative.
The panel granted reconsideration and ordered the record reopened
for purposes of supplemental opinion from Dr. Alban to include:
• Greater definition if how he reached the opinion that the
degenerative joint disease would have eventually caused symptoms;
• The reasoning and support thereof as to the percentage of
permanent disability caused by the natural progression of the
disease process.
• Statement as to how the underlying pathology would have caused
disability.
• Discussion as to the normal progression of the applicant’s
pre-existing disease process, and an “adequate familiarity” with the
pre-existing disability.
The decision underscores the fact that post SB 899 apportionment is
still no “cake walk” for the defendant, and requires an adequate
level of discovery to support a physician’s opinion on apportionment
to pathology. As a result, we are once again seeing a situation
where medical reports are being re-written to address these newly
defined standards.
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