California: When to Hold Them and When to Fold Them? Apportionment In Ortho, Psyche, And Internal Cases

This article is a favor to the WCAB commissioners and is a call out to parties and trial judges to develop the record before a case gets to the appellate level.

How many times have you been confronted with an “ortho, psyche, and internal” case in which either the psychiatrist or internist, or both, conclude that apportionment of permanent disability follows the apportionment of the orthopedic surgeon’s conclusions without any further discussion? Or what if the physician says the permanent disability is “inextricably intertwined” between separate injuries? Finally, what happens when an ortho, psyche, and internist do not review each other’s reporting? More often than not, either conclusion by a QME, AME, or treating physician confounds a trial judge and, as you will see, the WCAB and Court of Appeal.

Suppose you have a specific injury and a cumulative trauma injury in which an AME in orthopedic surgery concludes that the injured worker’s lumbar spine permanent disability is caused 75% from a specific injury and 25% is due to work related injurious exposure from cumulative trauma. Assume that the orthopedic surgeon properly explains how and why he or she came to that conclusion. For example, he or she explains that the acute injury led to the spinal surgery and the Applicant’s job duties were arduous and the medical records reflect the Applicant sought treatment for his lumbar spine prior to the acute injury. These conclusions would probably constitute substantial medical evidence. It doesn’t matter whether the apportionment is 75%-25%, 25%-75%, 50%-50% or any other permutation of percentages, as long as the orthopedic surgeon’s conclusions are properly explained and supported by the facts and medical record.

Now suppose the psychologist, psychiatrist, or internist in his or her MMI report states that the apportionment of permanent disability follows the orthopedic apportionment with no further commentary. Does the conclusion by the psychiatrist or internist constitute substantial medical evidence? Is the conclusion based on reasonable medical probability? What if the psychologist, psychiatrist, or internist states that apportionment of permanent disability is “inextricably intertwined” so there is no apportionment between the two injuries and no non-industrial apportionment?

When does a trial judge have a duty to develop the record and how does the trial judge develop the record in this situation? If the conclusion of the psychiatrist or internist who hitches his or her wagon on apportionment to the orthopedic surgeon’s conclusion does not constitute substantial evidence, does a trial judge have a duty to develop the record if the defendant does not meet its burden of proving apportionment?

(Publisher’s Note: Citations link to lexis.com. Bracketed cites link to Lexis Advance.)

DEFINITION OF “REASONABLE MEDICAL PROBABILITY”

At a recent medical-legal seminar, during the question and answer period, a physician asked the speaker “How do you define the term reasonable medical probability? This question symbolizes the difficulties that physicians have with the law. Physicians are very smart people. They are scientists by training. To physicians, the law is sometimes like a foreign language no one has ever heard.

The term “probability” to a physician triggers medical school education that defines anything on a scale of probability under the rules of statistics—that something is true based on a 95% probability with a 5% probability that the result is due to chance with a confidence interval between one to two standard deviations from the mean. Virtually every random, double blind, placebo controlled, clinical trial in medicine utilizes the foregoing standard of measurement. Most, if not all, of you attorneys who have just read the last two sentences are already lost. You may have heard an indirect reference to this in the MTUS that describes “weight of evidence” and medical studies that lead to the weight of evidence of the efficacy of a medical treatment protocol [see Lab. Code §§ 5307.27, 4610.5(c)(2)(A)-(F) [LC 5307.27, 4610.5]; 8 Cal. Code Reg. § 9792.20 (MTUS) [R 9792.20]; 8 Cal. Code Reg. § 9792.8(a)(1)-(4) [R 9792.8]].

On the other hand, “reasonable medical probability” means that there is at least a 51% probability that something is true. It is somewhat higher than the “preponderance of evidence” legal standard that means a feather of weight that is greater than 50% probability of truth or “more probable than not.” So you can see why case law that applies to apportionment of permanent disability allows a physician to state what “approximate percentage” of permanent disability is work related and what approximate percentage is non-industrial to a degree of reasonable medical probability [see Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 [70 CCC 604] (Appeals Board en banc decision); E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687 [71 CCC 1687]].

To begin the journey from an orthopedic surgeon’s conclusions about apportionment to those from an internist or psychiatrist in the same case, you need to review the actual operative language of Labor Code § 4663 [LC 4663]. Apportionment of permanent disability under Labor Code § 4664 [LC 4664] due to a prior award is a separate issue, and apportionment under Labor Code § 4664 is a worse nightmare for physicians and defendants—a subject that deserves some discussion in this article.

Labor Code § 4663(a) states: “Apportionment of permanent disability shall be based on causation.” Labor Code § 4663(b) mandates all physicians who address the issue of permanent disability must make an apportionment determination. Labor Code § 4663(c) mandates that in that determination of apportionment, the physician shall make a finding as to “what approximate percentage of the permanent disability was caused by the direct result of injury [AOE/COE] 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.”

Labor Code § 4664(a) states: “The employer shall only be liable for the percentage of permanent disability directly caused by the injury [AOE/COE].” Labor Code § 4664(b) mandates that “[i]f the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.” Labor Code § 4664(c) simply says that no region of the body can exceed 100% permanent disability over the lifetime of the injured worker.

WHEN TO DEVELOP THE RECORD AND WHEN NOT TO

Trial judges and the WCAB itself are struggling with cases that involve the question of how apportionment of permanent disability is established by medical specialists when the orthopedic injury is the primary initiating cause of permanent disability. A recent case is a great example of everything that can go wrong from an evidentiary standpoint that involved orthopedic, internal – rheumatology, and psyche and that resulted in the Court of Appeal chastising both the trial judge and a WCAB panel for their failure to develop the record when the treating psychologist failed to review the Applicant’s employment records, and the AME reports of the orthopedic surgeon and rheumatologist.

In Radiator USA v. Workers’ Comp. Appeals Bd. (Kang) [(2015) 80 Cal. Comp. Cases 79 [80 CCC 79] (court of appeal decision not published in official reports)], the Applicant sustained an admitted specific back injury while driving a truck that resulted in depression and a sleep disorder as compensable consequences of that injury. An AME in orthopedic surgery opined that the Applicant’s lumbar spinal condition resulted in permanent disability that was 50% due to the specific injury and 50% to non-industrial osteoporosis, an auto-immune disorder.

An AME in rheumatology confirmed the diagnosis of osteoporosis and concluded that the Applicant was suffering from depression and a sleep disorder. The treating psychologist diagnosed depression and the sleep disorder but did not review any of the Applicant’s medical records, the AME reports, or employment records. The psychologist opined that the Applicant “probably” met the 51% threshold of causation of psychiatric injury mandated by Labor Code § 3208.3 [LC 3208.3] but requested review of the foregoing records in order to evaluate properly the causation of injury, current disability status, and apportionment of disability.

Despite the lack of review of records by the psychologist, the matter went to trial and the judge found injury AOE/COE to the Applicant’s psyche and in the form of sleep disorder as compensable consequences of the orthopedic specific injury, and continuing TTD status. A WCAB panel upheld the WCJ’s findings and defendant appealed. The Court of Appeal reversed and remanded the matter back to the trial level with instructions for the WCAB and the judge to develop the record. This is because the treating psychologist never reviewed the AME reports or any of the other records in the case and could not draw any conclusions about causation of injury, temporary total disability status, or apportionment of permanent disability without a thorough review of the records in the case.

The Court of Appeal cited Labor Code §§ 5906 and 5701 [LC 5906, 5701], which empower the Appeals Board to develop the record on its own motion while a case is on reconsideration, if the record is incomplete. In fact, the Court of Appeal said the WCAB as an administrative agency has an affirmative duty to develop the record, especially if medical evidence is evenly balanced on the issue of industrial causation [see West v. Industrial Acci. Com. (1947) 79 Cal. App. 2d 711, 180 P.2d 972, 12 Cal. Comp. Cases 86 [12 CCC 86]; Lundberg v. Workers’ Comp. Appeals Bd. (1968) 69 Cal. 2d 436, 445 P.2d 300, 71 Cal. Rptr. 684, 33 Cal. Comp. Cases 656 [33 CCC 656]].

The Court of Appeal further stated: “The medical reporting in this case had a serious flaw which the appeals board should have recognized and, had the responsibility, to cure….While the defendant could have acted more vigorously, it is also true that the appeals board ‘may not leave undeveloped matters which it acquired, specialized knowledge should identify as requiring further evidence.’ [Citing West, 79 Cal. App. 2d at p. 719].” [Radiator USA v. Workers’ Comp. Appeals Bd. (Kang) (2015) 80 Cal. Comp. Cases 79, 86 [80 CCC 79] (court of appeal decision not published in official reports) (emphasis by court of appeal)].

What do we learn from this case? The applicant’s attorney had a duty to send the treating psychologist all of the AME reports, employment records, and any other information, including the Applicant’s deposition transcript, if any, so that she could issue an opinion that constitutes substantial medical evidence. The Defendant’s attorney should never hang his or her hat on the notion that the Applicant has failed to meet his burden of proof of injury AOE/COE. The trial judge should have realized that the record was incomplete on the issue of industrial causation of the psychiatric component and apportionment of permanent disability.

The development of the record in these “cross-over” cases arises all the time. The Kang case is a rare example of the failure of the parties, the trial judge, and the WCAB panel to develop the record so that the medical evidence constitutes substantial medical evidence and is based on reasonable medical probability. The same principle applies if the only remaining issue is apportionment of permanent disability.

The whole point is the struggle everyone has with respect to who has the burden of proof and when should a judge or the WCAB bail someone out? The Applicant has the burden of proof for causation of injury, parts of body injured, and permanent disability. The Defendant has the burden of proving apportionment of disability. When does a trial judge have a duty to develop the record under McDuffie v. Los Angeles County Metropolitan Transit Authority [(2002) 67 Cal. Comp. Cases 138 [67 CCC 138] (Appeals Board en banc decision)] as opposed to not bailing out an attorney who fails to complete or conduct discovery under San Bernardino Community Hospital v. Workers’ Comp. Appeals Bd. (McKernan) [(1999) 74 Cal. App. 4th 928, 88 Cal. Rptr. 2d 516, 64 Cal. Comp. Cases 986 [64 CCC 986]]?

BEST PRACTICES

The best practices for a trial judge to develop the record should occur when neither party has presented substantial evidence on which a judge’s decision could be based because no one bothered to conduct proper discovery and the issue before the judge involves a critical medical-legal issue such as causation of injury, causation of permanent disability, apportionment, current disability status, or need for future medical treatment. The harder question is, when does a trial judge or WCAB panel allow further development of the record when the only issue is apportionment of permanent disability? Is there a balance between a duty to develop the record and bail out a defendant or simply conclude that the defendant failed to meet its burden of proving apportionment? Does Labor Code § 4663 shift that burden in some way to the Applicant as well?

Case law is well established that it is proper for a judge to obtain evidence that would clear up uncertainty in a case in order to accomplish substantial justice rather than decide the case on a deficit of proof [see Kuykendall v. Workers’ Comp. Appeals Bd. (2000) 79 Cal. App. 4th 396, 94 Cal. Rptr. 2d 130, 65 Cal. Comp. Cases 264 [65 CCC 264]; M/A Com-Phi vs. Workers’ Comp. Appeals Bd. (Sevadjian) (1998) 65 Cal. App. 4th 1020, 76 Cal. Rptr. 2d 907, 63 Cal. Comp. Cases 821 [63 CCC 821]].

We know that the WCAB in its en banc decision in McDuffie provides workers’ compensation judges with a template of how to develop the record after submission of a case for decision when the issue involves medical or medical-legal conclusions. In McDuffie, the WCAB mandates trial judges to:

> Have the parties obtain a supplemental report or take the deposition of the physician;

> If the medical evidence is not substantial evidence, order the parties to try and select an AME;

> If the parties refuse to go to an AME, order a “regular physician” pursuant to Labor Code § 5701 [LC 5701].

Can a WCJ write a letter to the physician asking the physician to answer questions the WCJ has concerning the physician’s prior conclusions in his or her reports and deposition testimony? There is nothing in the Labor Code or regulations that prohibit a judge from sending an interrogatory letter to a physician to answer questions that may clarify a medical-legal issue or otherwise complete the medical record so that the judge can make a valid decision based on substantial evidence. If a WCJ wants to write a post-trial interrogatory letter to an evaluating physician (AME or PQME) rather than rely on the parties to develop the record, the WCJ should:

> Write the letter of inquiry to the evaluating physician

> Send the parties a Notice of Intent (NOI) to send the letter to the physician absent any written objection from the parties within 15 days of service of the NOI on the parties

> Send the letter to the physician with a request to address the written response in the form of a supplemental report to the WCJ and the parties in accordance with service of reports in 8 Cal. Code Reg. § 36(a)(1) [R 36] for represented injured workers and 8 Cal. Code Reg. § 36(b)(1) for unrepresented injured workers

> Issue a Notice of Intention to re-submit the case for decision

Remember, this only can occur after trial of the case on its merits and long after discovery has closed between the parties pursuant to Labor Code § 5502(d)(3) [LC 5502]. The WCJ takes control over very limited discovery since the case was already submitted for decision and the WCJ believes the record needs development, preferably on a narrow issue.

A good example of a WCJ sending an interrogatory letter to an AME has occurred in psychiatric cases where under Rolda v. Pitney Bowes, Inc. [(2001) 66 Cal. Comp. Cases 241 [66 CCC 241] (Appeals Board en banc decision)], the WCJ has to indicate to an AME psychiatrist what constitutes actual events of employment as judicial findings and whether or not those actual events involved lawful, non-discriminatory, good faith personnel actions. Another example is when the WCJ sends a letter to a panel QME who does not quite understand the definition of a cumulative trauma injury and the judge provides the definition under Labor Code § 3208.1 [LC 3208.1] along with a description of Labor Code §§ 5412 and 5500.5(a) [LC 5412, 5500.5] to determine if there are one or more CT injuries.

The same strategy can occur with determining causation of injury, causation of permanent disability, and apportionment. For example, in a case in which the orthopedic surgeon concludes that 75% of the lumbar spinal permanent disability is due to a specific injury and 25% is due to a cumulative trauma, is it substantial medical evidence for a psychiatrist to conclude that apportionment of permanent psychiatric disability follows the orthopedic apportionment? What if the psychiatrist concludes that the two injuries are “inextricably intertwined” between the two separate injuries but the orthopedic surgeon says 75%-25%?

From an applicant attorney’s perspective, it is imperative that he or she confirms that the treating and evaluating physicians comment on apportionment of permanent disability. Labor Code § 4663(b) requires it as does long-standing case law [see Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 [70 CCC 604] (Appeals Board en banc decision); E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922, 52 Cal. Rptr. 3d 133, 71 Cal. Comp. Cases 1687 [71 CCC 1687]; Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113 [74 CCC 113]].

Applicants’ attorneys should always send subpoenaed records, deposition transcripts, and employment records to the treating and evaluating physicians and ask them to comment on apportionment, if any, and on any other medical or medical-legal issue that may be addressed by a panel QME or AME in the case.

If a physician fails to comment on apportionment in an MMI report, that report will not constitute substantial medical evidence and the Applicant will not have a complete record for the trial judge or WCAB panel. So in a sense, the Applicant also has a burden of proof of apportionment to the extent that an evaluating or treating physician has to comment on the subject, or else the physician’s conclusions are useless.

Regardless of whether or not an internist or psychiatrist/psychologist hitches his or her wagon on apportionment to the orthopedic surgeon’s conclusions, all physicians MUST make an independent determination of apportionment of permanent disability. Simply incorporating another physician’s conclusions is not good enough. The parties, the trial judge, and the WCAB must require each reporting physician to explain how and why he or she agrees with the orthopedic surgeon’s conclusions about apportionment if he or she uses the same allocation of apportionment.

In all other situations, each physician in his or her own specialty must address apportionment based on his or her own assessment of the Applicant under that specialty. It is possible in the lumbar spine example above with 75% cause of permanent disability due to a specific injury and 25% of the disability due to the cumulative trauma injury, a psychiatrist or internist could easily conclude that permanent psychiatric disability or parts of body under the internal medicine conditions cannot be parceled out between the two injuries for various reasons. Again, the physician must state how and why the non-orthopedic disability cannot be apportioned between the two injuries, or if it can, how and why it is. If the internist or psychiatrist agrees with the same apportionment of permanent orthopedic disability, then that physician must state how and why the non-orthopedic disability has the same apportionment.

By the way, nowhere in the Benson decision does anyone use the term “inextricably intertwined” [see Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113 [74 CCC 113]]. The WCAB en banc decision and the Court of Appeal simply say: “We also agree that there may be limited circumstances, not present here, when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages 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 its burden of proof, a combined award of permanent disability may still be justified” [Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535, 1560, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113].

In the example above, if the Applicant needed back surgery after the specific injury but did not need surgery due to a concurrent cumulative trauma, it is possible that all evaluating physicians could apportion 100% of the disability for everything to the specific injury if the facts support that conclusion even though there was a specific injury and cumulative trauma injury. Alternatively, the outcome could be similar to that which occurred in Escobedo where 50% of the permanent disability to the knee was work related and 50% was due to non-industrial factors. As long as the physician explains how and why the physician came to that conclusion, then the report constitutes substantial medical evidence if his or her conclusions are based on reasonable medical probability.

APPORTIONMENT CONSIDERATIONS

In considering apportionment, a physician should determine apportionment of permanent disability utilizing the following factors:

> How severe a specific injury was in terms of impact (e.g., did the Applicant fall 3 feet off a chair or 12 feet off a ladder?)

> How arduous was the Applicant’s job as performed?

> Was there a gap in medical treatment to the same part of body from a prior injury (industrial or non-industrial prior injury)?

> Was there continuous treatment from a prior injury to the same part of body that led up to a more recent injury?

> Did the Applicant recover from a prior injury to the same part of body?

> What does the diagnostic imaging studies show after a prior injury or from prior medical treatment for a non-industrial condition to the same part of body?

> What does the chronology of medical events from when there were no signs, symptoms, or complaints to the present time, reveal, if anything?

PRIOR AWARDS

What if there is a prior award and the Applicant has a new injury? Apportionment of permanent disability has to be addressed by the treating and evaluating physicians. It becomes problematic for a physician to assign valid apportionment pursuant to Labor Code § 4664 with a presumption that the prior permanent disability is, in fact, permanent. Apportionment under Labor Code § 4664 occurs under two circumstances:

> Prior award is based on the 1997 PDRS or earlier version (based on work restrictions) and new injury is rated under the AMA Guides 5th Edition

> Prior award is based on a post 1/1/2005 date of injury or otherwise was based on the AMA Guides 5th Edition and new injury is also under the AMA Guides 5th Edition

We are seeing increased likelihood that more apportionment cases will involve new injuries that have the same part of body injured that was subject to a prior award under the AMA Guides. How does apportionment apply in these up-coming cases?

If a prior award was based on the 1997 or earlier PDRS, then you cannot simply subtract a prior permanent disability rating from the current one that is based on the AMA Guides. This is because it would be like comparing apples to oranges [see, e.g., County of Los Angeles v. Workers’ Comp. Appeals Bd. (Barnett) (2010) 75 Cal. Comp. Cases 155 [75 CCC 155] (writ denied); Contra Costa County Fire Protection Dist. v. Workers’ Comp. Appeals Bd. (Minvielle) (2010) 75 Cal. Comp. Cases 896 [75 CCC 896] (writ denied)]. Remember, before you can apportion permanent disability, you must rate permanent disability and adjust for DFEC (or adjustment factor of 1.4 if the date of injury is on or after 1/1/2013), age, and occupation first. Then you apply apportionment under Labor Code § 4663 or 4664.

For apportionment under Labor Code § 4664 between a prior award that was based on the AMA Guides and a new injury involving the same part of body, you must take these steps:

> How was prior WPI determined? E.g., DRE vs. ROM for spine?

> How is current WPI determined?

> What were the objective findings for prior rating vs. current one?

> Is there overlap between the prior permanent disability and the current one?

> An Applicant cannot claim he or she recovered from a prior injury that resulted in an Award if apportionment is established under Labor Code § 4664 prior award

> An Applicant can claim he or she recovered from a prior permanent disability if apportionment is under Labor Code § 4663.

For example, if a knee injury in 2005 rated 5% permanent disability based on a torn medial meniscus repair and a new 2014 injury involves a torn lateral meniscus repair, there would be no apportionment under Labor Code § 4664 because the new knee impairment involves a different part of the knee. However, if the prior award is based on consideration of Almaraz-Guzman III [Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (Guzman) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837 [75 CCC 837]] in terms of loss of function, the current rating may be reduced by all or part of the prior rating, depending on overlap. Defendants have the burden of proving overlap between the prior award and the new rating [see Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229 [71 CCC 1229]].

Defendants have the burden of proving overlap under the Kopping case which has proven to be elusive, if not impossible. If the prior 2005 knee injury in the example above had been rated based on the injured worker having an antalgic gait (Table 17-5) and the current rating for a 2014 injury is based on a total knee replacement (Tables 17-35 and 17-33), then defendant would have a hard time proving overlap. On the other hand if the prior 2005 injury award was based on arthritis of the medial, lateral, or patellofemoral compartment (Table 17-31) and the current rating was based on a total knee replacement, then there is total overlap and defendant could make the argument to subtract the prior award from the current one pursuant to Labor Code § 4664(b).

Otherwise, if Defendant is not able to prove overlap, then the remaining argument regarding apportionment defaults to an analysis of apportionment under Labor Code § 4663—what percentage of the current disability is caused by the 2014 injury and what percentage of the current disability is due to other factors, including the prior award?

What if the prior award in a 2005 lumbar spinal case was based on the DRE method, let’s say DRE Category II 5% WPI, and the new 2014 injury to the lumbar spine now rates DRE Category III 13% WPI? Do you automatically subtract the prior award under Labor Code § 4664 apportionment? Again, defendant would have to prove overlap. It seems that the analysis of overlap is a medical question as much as it is a legal concept. If the prior award involved an L4-L5 problem without radiculopathy and the new injury involves a herniated disc at L5-S1, then there is no overlap. Plus the DRE III rating is due to a radiculopathy that did not exist from the prior 2005 injury. If both injuries involved the same level of the lumbar spine, then you have a fairly good argument of overlap but that must be established medically by a treating or evaluating physician.

What if the prior award was based on DRE and the new injury is based on ROM? Can there be overlap? There is no case law on this issue yet but it is likely to arise soon. It is probable that counsel would have to focus on the medical diagnosis, the levels of pathology, and the cause of permanent impairment for each injury to determine if overlap exists.

If the prior award was based on ROM and the new award is based on ROM, then it is possible to prove overlap with subtraction of permanent disability under Labor Code § 4664(b). In that event, the issue is whether the ROM measurements are conducted the same way between the earlier MMI evaluation and the more recent one. Moreover, Table 15-7 will be the final determinate of whether true overlap occurs because the ROM method relies on a spinal diagnosis that could be totally different between two or more injuries to the same sub-region of the spine. If there are different spinal diagnosis for each injury from Table 15-7, then there probably is no overlap, unless defendant would be able to convince a physician how overlap can occur when the spinal diagnosis between two or more injuries are different.

What about apportionment to risk factors such as an extra rib for thoracic outlet syndrome, a downsloping acromion for shoulder impingement, high cholesterol for heart disease, or the aging process for osteoporosis [see, e.g., United Airlines v. Workers’ Comp. Appeals Bd. (Milivojevich) (2007) 72 Cal. Comp. Cases 1415 [72 CCC 1415] (writ denied) (high cholesterol is only a risk factor for heart disease; it is not causative of permanent disability); Vaira v. Workers’ Comp. Appeals Bd. (2008) 72 Cal. Comp. Cases 1586 [72 CCC 1586] (court of appeal opinion not published in official reports) (73-year-old has fractured vertebral body with long lasting osteoporosis; remanded for further development of record to determine how long person has a disease process dictates potential apportionment, not the person’s age)].

CONCLUSION AND TAKE-AWAYS

> Physicians need to separately and thoroughly address apportionment of permanent disability based on his or her own independent analysis.

> If a physician relies on another physician’s apportionment analysis, he or she must state how and why he or she agrees with the apportionment, e.g., internal medicine or psychiatric AME or PQME adopts apportionment based on orthopedic surgeon’s conclusion.

> The parties need to develop the record on causation of injury, causation of permanent disability, and apportionment when the Applicant is MMI prior to trial.

> Do not sit idly by while the record in a case is deficient on crucial medical-legal issues.

> Judges need to be arbiters of the record – to make sure conclusions of physicians are based on reasonable medical probability.

> The WCAB panels should not have to develop the record when the parties and the trial judge already had the best opportunities to do so.

> A WCJ may write a post-trial letter to a physician to develop the record provided that the parties have an opportunity to object.

> If apportionment between industrial injuries cannot be parceled out, then the physician must state why they cannot be parceled out.

> Apportionment under Labor Code § 4664 is difficult since defendants have the burden of proving overlap.

> Apportionment between prior injuries rated under the AMA Guides and new injuries under the AMA Guides is also difficult under both Labor Code §§ 4663 and 4664, which require medical analysis.

> Most cases will result in apportionment under Labor Code § 4663 if there is more than one industrial injury to the same part of body using the AMA Guides, especially if alternative rating methods were used in the prior injury or in the new one.

> An Applicant cannot claim he or she recovered from a prior injury that resulted in an Award if apportionment is established under a Labor Code § 4664 prior award because of the conclusive presumption.

> An Applicant can claim he or she recovered from a prior permanent disability if apportionment is under Labor Code § 4663.

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