Luis Pérez-Cordero |
¬Impairment & Disability
Rating Specialists® California Workers Compensation |
Craig
Andrew Lange |
|
Voice: (415)-861-4040
/ Southern California
Fax #: 619-374-7334 / Central
California Fax #: 916- 848-3582 Main
Fax #: 415- 276-3741 |
||
Keeping Apportionment
A Medical Issue – Some Guidelines for P&S Reports
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LC § 4663 & WCAB EN-Banc Decision: m. Escobedo vs. Marshall’s
& CNA Insurance: (http://www.dir.ca.gov/wcab/wcab_enbanc.htm)
Apportionment caused by other
factors may include not only disability that could have been apportioned
to prior industrial injuries, but may also include apportionment to
pathology, asymptomatic prior-conditions and/or retroactive prophylactic work
preclusions. There must be substantial medical evidence establishing
that the avocational factors have caused permanent disability. 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). Apportionment
does not become an issue until the doctor has determined (1) that there was
an industrial injury and (2) that the injury caused some degree of permanent
ratable impairment. In your
letters, Ask Physician: 1.
Please
discuss your findings on any apportionment to non-industrial (avocational) or
pre-existing factors (pathology) as required by the recent decisions of the
WCAB. Apportionment to factors that
previously could not have been apportioned-to, including pathology and
asymptomatic pre-injury conditions is now permitted. The Escobedo decision provides that any
conclusion regarding apportionment must be supported by substantial medical
evidence establishing that these factors have caused permanent disability. The
Board concluded that to be considered substantial evidence, your opinion
about the approximate percentage of PD due to the direct results of the
injury and the “approximate percent” of PD due to other factors, must
be: 1.1.
Framed in terms of reasonable medical probability; 1.2.
Based on pertinent facts and on an adequate end history; and 1.3.
It must
set forth reasoning in support of its conclusions; 1.4.
It must not be speculative. The court stated that the physician must explain how and
why the other factors are causing permanent disability at the time of the
evaluation, and how and why they are responsible for an approximate portion
of the disability. When the
report is in, ask the following questions: 2. For
avocational and pre-existing pathological findings: 2.1.
Q: Has evaluating physician
considered avocational factors, findings and symptomatology independent of
the permanent disability due to vocational (industrial) causation? For
example, has physician considered pre-existing objective pathology,
symptomatology, work limitations secondary to pre-existing disability,
including time off from work or need for treatment? 2.2.
Q: Has evaluating physician
provided a well-reasoned opinion based on the review of the
medical records, the medical and treatment histories and the examination
findings? 2.3.
Q: Is evaluating physician’s approach to
apportionment truthful,
based on common sense, clinical experience and knowledge of medical-legal
principles, with a well-reasoned opinion that shows a thorough consideration of
all the relevant facts? Or is the
opinion’s validity suggestive of the physician’s interest in pleasing the referral source? (Refer to
Examples 5 & 6) Page 1 of 2 |
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LC § 4663 – Apportionment Language Examples
Q: Which three
of the following 6 examples do you think abide to the guidelines established
by the WCAB/s en banc decision?
1. The
basis for the patient's injury is industrial. One of the questions asked is whether
or not there is a precipitating cause for all or part of this disability. In
this case, the patient has a history of carpal tunnel syndrome dating back to
1996 such that apportionment is a proper consideration. According to Labor
Code 4663(B) and (C), pathology in and of itself/ pre-existing or not/ may
not be considered for apportionment unless there is evidence that the patient
sustained some level of disability as a result of this pre-existing
pathology. In this case/ the reasoning applies. This patient has a. prior
history of carpal tunnel syndrome, which reasonably could have been expected
to result in disability at some time should it not respond to treatment or
should the patient decline the treatment, what treatment the patient has had
has not been successful. Other treatments known to be successful in this sort
of situation, carpal tunnel release/ have been declined. An. intermediary
procedure, carpal tunnel injection, was also not successful. The patient has
reached maximal treatment benefit from acupuncture, which she has tried for
six months. Therefore in this
situation, there is evidence of prior impairment and previous causation even
if there is no evidence that the patient was ever put on permanent disability
before. In my opinion, 50% of the patient’s current disability reflects
prior causation and previous impairment.
50% is vocational and related to both the specific and cumulative
trauma periods. 2.
Mr. IW has a
disability to the shoulders that occurred as a consequence of arthritic changes
and the attritional changes of aging associated with the cumulative effects
of repetitive strain over the years. This apparently initially precipitated
some disability about the shoulders in 1996. It was noted that Mr. IW then
developed some symptoms about the right elbow sometime in 2003. This
similarly appears to have occurred as a consequence of repetitive stress and
strain to the elbow. There is possible contribution by neurofibroma to the
right elbow but this could not be determined with any high degree of
certainty. I am of the opinion that
the disability to the shoulders and right elbow is apportionable.
Approximately 75% of the disability outlined above to the shoulders, upper
torso and upper extremities would be related to cumulative trauma occurring
up through Mr. IW's last day of vocational injurious exposure of November
2004. 3.
With respect to
the lumbar spine, this patient has evidence of pre-existing degenerative disc
disease of the lumbar spine. It is medically reasonable that even absent the
industrial injury on June 2, 2003, 2/3 of her current disability would be
present today as a result of the pre-existing degenerative changes of the
lower lumbar spine and its natural progression. 1/3 of her current disability
is related to the effects of the Industrial injury on June 2, 2003 4.
The above work
preclusions are, in large part, prophylactic for the prevention of recurrent
injury in light of his early disc degeneration. I conclude that 75% of his current impairment and work
restrictions should be apportioned to preexistent non-industrial causes and
25% to the effects of his specific injury at work on June 3, 2004. My
opinions on apportionment comply with Labor Code Sections 4663 and 4664. 5.
The County of
XX has employed Ms. XX for over 25-years and so it is my opinion, to a degree
of medical probability, that zero percent of any disability described, or
which may accrue in the future, will be related to pre-existing
non-industrial medical condition.
Rather, it is my opinion that 100% of the permanent disabilities
present in this case, and which will likely accrue in the future, is a direct
result of this patient's employment with the County of XX on a
cumulative-trauma-basis continuing through August 27, 2003. I would
reiterate my opinion that all additional disability described in this report
is the result of cumulative exposure through August 27, 2003, as it would be
speculative of me to attempt to ascribe any residuals to any specific
industrial injuries. 6.
In terms of the
spine, it is probable that his pre-existing cervical degenerative disease and
his injury of April 16-2004 played a role in his spinal dysfunction and
associated impairments. He is a smoker that is a significant risk factor. It appears reasonable to assign half (50%) of his difficulties to his
injury and 50% due to other factors, including his pre-existing disease. Luis Pérez-Cordero &
Craig A. Lange Monday, August 15, 2005
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