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California Workers Compensation Impairment
& Disability Rating Specialists |
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More Apportionment
Language Examples 1. The
medical report must address the issue of apportionment by describing the approximate
relative percentages of Industrial and Non-Industrial Causation under LC §
4663(c). 1.1.
The en banc panel of the WCAB focused on new
language in LC 4663(c), which provides for apportionment based on what
approximate percentage of the permanent disability was caused by "
other factors both before and subsequent to the industrial injury,
including prior industrial injuries." (Emphasis added.) 1.2.
The language stating that apportionment may be
based on 'other factors both before and subsequent to the industrial injury'
does not limit what non-industrial factors may be considered as a cause of
permanent disability purposes of apportionment. Thus, this language appears
to require apportionment based on any 'other [non-industrial]
factor,' either pre- or post-injury. 1.3.
The en banc panel of the WCAB, after expanding the
language of LC 4663(c) from "other factors" to "any other
[non-industrial] factor," then enlarged the list of factors that can be
apportioned as follows: 1.4.
[T]he
'other factors' now may include pathology, asymptomatic prior conditions,
and retroactive prophylactic work preclusions, provided there is substantial
medical evidence establishing that these other factors have caused permanent
disability." |
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è
“If it were not for-the non-industrial degenerative
arthritis and disk condition, the permanent disability would not exist. It
is medically reasonable, therefore, to apportion 50% of the cause of the
Permanent Disability to the non-industrial factors and 50% to work involving
moderately heavy exertion over the past 13 years “ è Absent an acute precipitating event, the aforementioned
diagnosis typically occurs over a prolonged period of time and may be
related to the performance of repetitive-activities both at work and at
home, As a patient typically spends no more than 25% of their 168-hour week
at work, it would seem inconceivable that 100% of the development of a
so-called "cumulative trauma disorder" could be attributed to an
industrial activity alone. It is my opinion that it would be very
generous to apportion only 25% of their resulting disability to their
non-industrial activities and the remaining 75% to industrial factors.” è
The medical records reveal multiple notations of
right elbow/forearm extremity pain and tendonitis type symptoms. 1st
episode occurred on 9-20-97, next episode 3-10-98, followed by other
episodes on 08-02-00, 09-10-00 and 8-10-01.
After the last episode the condition manifested full-time. There are notations that the patient’s episodes
of pain were associated with gardening episodes of working on auto-work
episodes. Although no specific trauma occurred, she did have symptoms. It
should also be noted that she was working at this position at the time and
no doubt work was contributing to the right forearm tendonitis issues. Therefore, it is my opinion that 50% of
her right forearm condition is non-industrial and related to her vocational
cumulative trauma. With
respect to the patient’s cervical complaints< bilateral shoulders and left
upper extremity, apportionment is not an issue. è Patient has documented MRI
evidence of degenerative cervical spine disk disease and lumbosacral disk
disease as well as operative evidence of degenerative changes of the left
shoulder and subacromial region. He has had a prior right knee injury
requiring surgery. His right and left feet have hammer second toes and being
that he is wearing steel-top shoes would be non-industrial in nature
(hammertoes really are not caused by work or occupation, for the most part,
but could be aggravated by his job as a concrete foreman}. Also, patient
worked for the Building Companies doing rather strenuous and hard labor for
13 years or so prior to his industrial injury, so it could be argued that
much of his degenerative changes were caused by his employment with Building
Companies, but some of the permanent disability is due to prior work as a
construction worker as well as underlying degenerative changes of the
cervical spine, shoulders, back, and knees that would have occurred even if
he did not work or had worked at a sedentary job. Thus, it is my opinion, with reasonable medical probability,
that the permanent disability to the left shoulder is 80% due to cumulative
job trauma through 12/2/02 and 20% is due to age-related degenerative
changes and prior work in the construction industry over the years. 90% of
the permanent disability to the cervical spine is due to cumulative job
trauma through 12/2/02 and 20% is due to age-related degenerative changes
and prior work in the construction industry. è There is
apportionment needed for disability. On a causation basis, if we are
considering continuous trauma as having been involved regarding the hands
and wrists, then 80% of the present wrist/hand problem are due to continuous
trauma or vocational work activities, and 20% is due to avocational
activities performed during the same time period in which she occupied her
hands for longer periods of time over the years off the job than she did on
the job. Therefore, there is contribution from off-the-job activities. Page 1 of 2 |
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More Apportionment
Language Examples è Having
had the opportunity to see and examine the patient, reviewing the mechanism of
injury, the patient's subjective complaints of pain and my objective
findings, as well as having had the opportunity to review the submitted
medical records supports my conclusions not only as to the diagnoses but
also the apportionment of causation.
I have assigned impairment caused by factors other than the
industrial injury, and that level of impairment constitutes the
apportionment to avocational and pre-existing factors. The ratio of
non-industrial impairment, if any, to all described impairment represents my
best medical judgment of the approximate percentage of impairment caused by
the industrial injury and the approximate percentage of impairment caused by
other factors, as defined in Labor Code 4663 and 4664. è In reviewing
the medical records, this was obviously a case of an extremely heavy patient
with degeneration of his joints that was pre-existing and longstanding and
complicated by several injuries. He has had studies of both shoulders and
both knees and all showed degenerative changes, not acute injuries. This is
not to state that he wasn't injured, as he was, only that his primary
treating physician had limited success with arthroscopies to the knees and
right shoulder because these were not simply acutely injured joints. è
The causation for weakness of the
right knee/leg is due to post-operative changes in the surrounding
musculature. The current instability of the right knee is related, to the
industrial injury of February 10, 2004, Subjective pain symptoms are due in
part to a previous meniscectomy and the most recent industrial injury. I apportion 75% of
this patient's current impairment of the right knee to the February 2004,
industrial accident and subsequent surgery. I apportion 25% of the current
impairment of the right knee to the previous meniscectomy.” è Whether
or not Escobedo affirms it, there is opinion, which I accept, that examiners
are obligated to consider "apportionment to pathology" as a
possible defense theory and for that matter any reasonable theory and/or
evidence that supports the defense burden of proof as identified by
Escobedo. There are, however,
medical problems with "apportioning to pathology" both in general
and in connection with this particular case. These include: 1. Pathology
is the structural portion of disease processes detectible by visible
inspection (gross pathology) and by microscopy, using histopathologic
techniques. A properly obtained tissue biopsy, deemed representative of the
pathology left unexamined, goes some distance toward identifying "the
pathology." Other tests can
answer to restricted portions of "the pathology." For example, one
can speak of that part of the pathology which is revealed by one or another
test. Such tests reveal not "the pathology" but "that part of
the pathology susceptible of being identified by the particular test." In the present case, there is
no reliable information as to "the pathology" and therefore not
justification in implicating it as a cause of anything. 2. In lieu
of reliable information as to the nature and extent of "the
pathology" there is, instead, (a) radiologic pathology, which is of the
type identified in (2), and a weak inference, which may or may not have been
made explicit by one or more examiners, to the
effect that some class of people accrued disabling pathology in certain ways
and at certain ages, and therefore this must have been the case with the
applicant. Escobedo actually affirms, as an
example of an argument no longer barred by law, just such a claim with
respect to the cause of an applicant's knee disability. 3. Although not barred legally, the argument "that some class
of people accrued disabling pathology in certain ways and at certain ages,
and therefore this must have been the case with the applicant" is
devoid of medical merit for two reasons:
(a) The idea "some people have it, therefore this person has
it" is logically invalid, and without basis. (b) There is no evidence
indicating what pathology the applicant actually had prior to the claimed
injury, nor as to what the applicant would now have, absent the injury.
There is no evidence that supports any claim as to any specific amount or
any of any particular nature. 4.
Medicine has medically accepted
methods for explaining the cause of certain conditions and for the causes of
certain diseases. The branch of medical science which both addresses both
(i) these forms of causation and (ii) the rationale for the various types
of causation explanation is "epidemiology," exclusively. An
argument, which requires, for its own support, assumptions for which there
is no actual supporting evidence, are inherently weaker, medically, than
arguments without such requirements. Any "argument from pathology"
demands close examination as to whether it does, or does not, conceals within
itself a medically unsupported leap from "the pathology revealed on a
certain test" (e.g., radiograph) to "disability. Conclusions that
require an unsupported jump as part of their chain of reasoning are not, on
that account factually wrong. They are guesses, which might or might not be
right, partly right, or perhaps entirely wrong, for all anybody knows. Other than for the
apportionable pre-existing condition, I think the upper back disability is
attributable to the specific and cumulative industrial incident as follows:
(a) I think 75% is attributed to the specific vocational event. (b) I think
25% is attributable to the natural history condition, which was creating
pre-existing impairment/disability that would now be present even absent the
industrial injury. Luis
Pérez-Cordero & Craig A. Lange Monday, August 29,
2005 Page 2 of 2 |