California: Apportionment Under Benson: The Long Overdue Demise of “Inextricably Intertwined”

By Raymond F. Correio, Esq.

A number of decisions from the WCAB in 2016 and 2017 indicate a marked shift related to apportionment involving multiple injuries under Labor Code §§4663 and 4664, as reflected in the WCAB’s Benson en banc decision (affirmed by the Court of Appeal in Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 75 Cal.Comp.Cases 113, 2009 Cal. Wrk. Comp. LEXIS 17). Recent Benson decisions from the WCAB in 2016 and 2017 evidence a rejection of the cryptic conclusory mantra of “inextricably intertwined” used by evaluating physicians to justify an exception to the Benson requirement that permanent disability related to multiple and distinct injuries must be apportioned and not combined.

A Quick Benson Refresher: In Benson, applicant suffered a specific neck injury on June 3, 2003, resulting in a three-level fusion of the cervical spine. Her initial Application for Adjudication related only to the specific injury. However, after she was examined by an AME in orthopedics, the AME determined applicant also suffered a cumulative trauma injury through June 3, 2003. The AME concluded that both of applicant’s injuries became permanent and stationary at the same time. The doctor apportioned 50% of the applicant’s cervical spine disability to the specific injury and 50% to the cumulative trauma. There were no nonindustrial contributory causal factors related to applicant’s cervical spine disability. It was undisputed the combined permanent disability rating for both injuries was 62% after adjustment for age and occupation. Following trial, the WCJ relying on the Wilkinson case, issued a combined award of 62% permanent disability. Defendant filed a Petition for Reconsideration arguing the Wilkinson decision was inconsistent with SB 899 and Labor Code §§4663 and 4664, which required that applicant’s cervical spine disability be apportioned between the cumulative trauma and specific injury resulting in separate awards of 31% permanent disability. A combined award of 62% equated to a dollar value of $67,016.25. However, with two separate awards of 31%, the permanent disability would only be $49,210.00, a significant difference of $17,806.00.

The WCAB granted defendant’s Petition for Reconsideration and in an en banc Opinion and Decision held the rule in Wilkinson was inconsistent with the new requirement that apportionment be based on causation. The Board found that Wilkinson was no longer controlling and therefore amended the WCJ’s finding and awarded applicant two separate awards of $24,605.00, based on separate ratings of 31% permanent disability. Applicant filed a Writ with the Court of Appeal. The Court of Appeal affirmed the WCAB’s en banc decision, finding SB 899 and the enactment of Labor Code §§4663 and 4664 and the repeal of former §4750 revealed a plain intent to adopt a new apportionment scheme that was inconsistent with the prior Wilkinson doctrine of combined awards related to multiple injuries to the same part of the body that became permanent and stationary at the same time.

The Court of Appeal in Affirming the WCAB’s En Banc Decision stated:

In conclusion, we agree with the Board majority that the plain language of section 4663, subdivision (c), read in conjunction with the statutory scheme as a whole, “specifically requires a physician to determine what percentage of disability was caused by each industrial injury, regardless of whether any particular industrial injury occurred before or after any other particular industrial injury or injuries.”

The Court of Appeal noted the California Supreme Court’s decision in Brodie, holding that both §§4663 and 4664 “made clear that apportionment is required for each distinct industrial injury causing a permanent disability, regardless of the temporal occurrence of permanent disability or the injuries themselves.” The Court of Appeal also indicated, “that the only relevant inquiry is whether separate and distinct industrial injuries had been sustained. If so, then each injury must stand on its own.”

The Court of Appeal also agreed with the Board that when there are multiple injuries there may be “limited circumstances” (that were not present in the Benson case) “when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentage as to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such limited circumstances, when the employer has failed to meet his burden of proof, a combined award of permanent disability may still be justified.” (see footnote 3 of Benson for further explanation of “limited circumstances”) With respect to this refresher overview of the Benson case, it is important to note that nowhere in the WCAB’s en banc decision or the Court of Appeal’s decision was the cryptic conclusory phrase “inextricably intertwined” mentioned.

Apportionment subsequent to Benson: Following Benson, it was clearly evident that apportionment pursuant to Benson would have a dramatic effect on the value of an applicant’s permanent disability award. Based on Benson, apportionment of permanent disability related to multiple injuries would apply in the majority of situations except in “limited circumstances.” For several years after the Court of Appeal’s decision in Benson the requirement that permanent disability related to multiple injuries be apportioned, was quickly undermined and subverted. Instead, the “limited circumstances” exception became the rule.

Physicians could negate Benson by was merely interjecting into their reports an opinion in cases involving separate injuries that the permanent disability was “inextricably intertwined,” and this was deemed to be substantial medical evidence without the need for any analysis or explanation. It was like a scene from Harry Potter. An evaluating physician confronted with permanent disability related to multiple injuries, would wave a stethoscope over the cases and chant “inextricably intertwined” three times and multiple successive injuries magically merged into one cumulative trauma.

However, in 2016 and 2017, a number of decisions from the Board have rejected the conclusory cryptic mantra of “inextricably intertwined” as a substitute for an actual analysis or detailed reasoning as to why the reporting physician was unable to make an approximate determination of what percentage of the applicant’s permanent disability was attributable to multiple injuries related to each body part or condition.

Recent cases rejecting the conclusory “inextricably intertwined” rationale as creating a viable exception to Benson

Guritzky v. Regents of the University of California 2016 Cal. Wrk. Comp. P.D. LEXIS 349 (WCAB panel decision)

Applicant suffered multiple specific injuries in 2003 and 2004. There were four evaluating physicians consisting of a defense orthopedic QME, applicant’s orthopedic QME, a defense psychiatric QME, as well as applicant’s psychiatric PTP. All of the evaluating physicians except for applicant’s psychiatric PTP were able to apportion applicant’s permanent disability pursuant to Benson between the two specific injuries. Two of the three doctors also apportioned to nonindustrial factors under Labor Code 4663. However, applicant’s psychiatric PTP opined that he could not apportion the applicant’s 85% psychiatric PD between the two specific injuries since in his opinion the PD was “inextricably intertwined.” The WCJ issued a combined 100% PTD award without either 4663 nonindustrial apportionment or apportionment pursuant to Benson. Defendant filed for Reconsideration arguing the WCJ erred in finding 100% PTD contrary to Labor Code 4663 as well as Benson apportionment between the two successive specific injuries

The WCAB granted reconsideration and rescinded the WCJ’s unapportioned award and remanded the case for the psychiatric PTP by way of supplemental report or by deposition to provide non-conclusory reasons as to why he was unable to make an apportionment determination between applicant’s two specific injuries when three of the other evaluating physicians were able to do so. In that regard the Board stated the PTP “does not explain why the apportionment determinations made by other physicians…are either incorrect or not applicable.” The Board also noted that not only did three of the four reporting physicians in the case find a basis to apportion the applicant’s permanent disability between the two specific injuries, but also to nonindustrial contributing factors related to applicant’s lumbar spine. The WCAB also questioned how and why the WCJ rejected the opinions of multiple physicians indicating both Benson apportionment and to nonindustrial factors.

Cruz v California Hospital Medical Center (2016 Cal.Wrk. Comp. P.D. LEXIS 685 (WCAB panel decision)

Applicant suffered two admitted specific injuries in 2002 and 2005. An AME, opined that the applicant’s permanent disability from the two successive specific injuries was “inextricably intertwined.” The WCJ relying on the AME’s opinion, awarded applicant one combined award of 94%. Defendant filed for Reconsideration contending the WCJ had merged two separate and distinct specific injuries into one award of permanent disability and failed to apportion permanent disability between the two specific injuries as required by Benson and Labor Code 4663. Applicant also filed for Reconsideration arguing the WCJ should have found the applicant 100% PTD.

The WCAB granted defendant’s Petition for Reconsideration and remanded the cases for further development of the record in the form of the parties agreeing to use another orthopedic AME or the WCJ should appoint a “regular physician” under L.C. 5701. The WCAB found the AME’s opinion that the permanent disability from the two specific injuries was “inextricably intertwined” did not constitute substantial medical evidence. The Board also found the AME gave inconsistent and conflicting opinions on both the level of PD and on Benson apportionment and failed to provide an adequate explanation related to his inconsistent and conflicting opinions and failure to apportion correctly under Benson even though he issued sixteen reports and was deposed three times over the period of ten years. With respect to the requirements of Benson, the WCAB stated:

In the case of successive injuries to the same body part, we held that a combined award of permanent disability is inconsistent with the requirement that apportionment be based on causation. The “reporting physician is required to determine all of the causative sources of the employee’s permanent disability, giving consideration not only to the current industrial injury, but also to any prior or subsequent industrial injuries, as well as any prior or subsequent non-industrial injuries or conditions.” (Benson, supra, 72 Cal.Comp.Cases 1620 at 1631-1632.) If the physician cannot do so, he or she must state the reasons why, after an evaluation or consultation with at least one other physician. (Id., at p. 1632.) We did, however, acknowledge and leave room for a combined award in those rare instances where the physician, after complying with the mandates of section 4663, simply cannot “medically parcel out the degree to which each injury is causally contributing to the employee’s overall permanent disability.” (Id., at p. 1634., emphasis added)

Tapia v. City of Watsonville, PSI 2017 Cal. Wrk. Comp P.D. LEXIS 50 (WCAB panel decision)

A fire captain filed five claims consisting of two separate cumulative trauma claims and three specific injuries. The AME characterized all of these injuries and related PD as “intertwined” and they were best looked at as a single cumulative trauma. He claimed he was unable to break out individual injury dates and related permanent disability. All five cases were consolidated for hearing. The WCJ following the AME’s opinion found only one cumulative trauma and awarded applicant 73% PD with no apportionment among any of the four other dates of injury. The WCAB granted defendant’s Petition for Reconsideration and rescinded the award remanding the case for further proceedings in the form of a supplemental report from the AME or a deposition to deal with permanent disability and the Benson apportionment issue. The WCAB stated that pursuant to Benson, “[t]he only instance in which a combined award of permanent disability may be justified is where the evaluating physician is unable with reasonable medical probability, to parcel out the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability.”

The WCAB concluded the AME’s opinion that all of applicant’s disability was attributable to a single cumulative trauma did not constitute substantial medical evidence since:

Notwithstanding the clear evidence that applicant sustained three distinct industrial injuries …Dr. Anderson does not assign specific levels of disability to these separate injuries or explain why he is unable to do so. Instead, he states, “I am not able to break out individual dates and levels of impairment.” The only attempt at an explanation is the suggestion that with police officers, firefighters and transit drivers it is common to find multiple injuries over the course of their careers that actually represent a cumulative trauma exposure. That commentary is insufficient to meet the requirements of section 4663(c). Dr. Anderson must either assign a specific level of disability to each of applicant’s industrial injuries or expound as to the exact reasons he is unable to do so.

Ibrahim v. California Dept. of Corrections and Rehabilitation (2017) 45 CWCR 203 (WCAB panel decision)

Medical reports from three Agreed Medical Examiners in different specialty fields were found by the WCAB to not constitute substantial medical evidence on apportionment since each of the AME’s failed to adequately explain why they could not apportion the applicant’s permanent disability among several separate and successive injuries. Applicant filed twenty-one claim forms, but only filed Applications related to nine injuries consisting of seven specific injuries and two cumulative trauma injuries. Relying on the medical reports from the AMEs in various fields, the WCJ issued a combined award related to only two specific injuries of the nine total consolidated injuries without any Benson apportionment. The WCAB granted defendant’s Petition for Reconsideration and rescinded the combined Award of PD and remanded for further development of the Record.

Two of the evaluating AME’s in psychiatry and internal medicine “merely” stated in a conclusory manner that the multiple injury claims were “inextricably intertwined.” More importantly these same AME’s failed to provide any plausible analysis or explanation as to the basis for their respective opinions that the permanent disability from nine separate injuries was “inextricably intertwined.” Although the AME in orthopedics found two separate specific injuries, he failed to apportion any of applicants PD between these two injuries as required by Benson. He also failed to discuss the applicant’s other seven injuries, including five specific injuries and two cumulative trauma injuries. See also, Singh v. State of California 2017 Cal. Wrk. Comp. P.D. LEXIS 204 (WCAB Panel Decision) (WCAB rescinded WCJ’s combined Award of 100% PTD related to four separate injuries and instead awarded applicant three separate awards of 53% and 47% and 67%related to two separate injuries and a cumulative trauma injury).

Key Points and Considerations:

1. Labor Code Sections 4663 and 4664, as well as the Benson decision require that permanent disability attributable to multiple and successive injuries to the same body parts or condition must be separately apportioned between the multiple injuries as opposed to a single combined award of permanent disability except in “limited circumstances.”

2. In “limited circumstances” or in “rare instances”, where evaluating physicians assert or allege they cannot medically parcel out the approximate percentage to which each separate injury is causally contributing to the applicant’s overall permanent disability to the same body part or condition, he or she must provide an opinion based upon a plausible non-conclusory analysis and reasoning as to why they are unable to do so in order for their opinion to constitute substantial medical evidence.

3. In terms of substantial medical evidence, the “limited circumstances” exception to Benson should not be deemed triggered or established by a physician merely stating the permanent disability attributable to multiple injuries is “inextricably intertwined.” To do so would serve to transform the “limited circumstances” exception recognized in Benson into the general rule which would be inconsistent with Labor Code sections 4663 and 4664 and applicable case law.

© Copyright 2018 Raymond F. Correio, Esq. All rights reserved. Reprinted with permission.