An unanimous board panel, Gault v. American Vacation Clubs, Inc./Republic Underwriters Ins. Co., ADJ9878134 (SAC), Oct. 12, 2018, Decision After Reconsideration, has held that the potential effects on the applicant’s health were long term antibiotic treatment following a total knee surgery constituted a “insidious disease process” and supported an interim award of permanent disability with a reservation of jurisdiction to increase the permanent disability beyond the statutory five year limit from the applicant’s date of injury.

They felt that the increased impairment was likely to be caused by the complications from the long-term treatment required for the industrial injury.

In this case, the applicant injured his right knee in April of 2014. He underwent a total knee replacement in 2013 and developed an infection following that which required multiple procedures. He was then placed on long term antibiotic therapy to manage the infection. He went to a Qualified Medical Evaluator who reported that he would likely require lifelong antibiotic therapy as a result of the infection at the operation site.

The QME also added that the applicant’s impairment rating could include potential complications from chronic antibiotic use such as infectious colitis and drug toxicity, seizures disorders, hepatotoxicity and allergy medicated side effects.

The QME was deposed and found that the current limitations, however, did not limit any of the activities of daily living but that the applicant could have additional problems arising from the continued constant antibiotic use.

At Trial, the Judge did find the applicant’s condition to be permanent and stationary and awarded permanent disability. Upon reconsideration, the defendants argued that the infection was not yet permanent and stationary given the QME’s conclusions that the applicant’s condition could worsen in the future. It is unclear as to why that argument was raised by the defendants. In fact, the Judge agreed with that and found that the applicant’s condition constituted “an insidious progressive disease process” which warranted a reservation of jurisdiction beyond the five years normally allowed for permanent disability indemnity. They followed the holdings of General Foundry Service/California Casualty Insurance Company v. WCAB (Jackson) (1986) 42 Cal.3d 331. In this case, the California Supreme Court carved out a specific and limited exception to the five year statute for cases involving insidious progress disease that have long latency periods.

This was reconned and the Board upheld the Judge’s decision indicating that the medical evidence had established “to a near medical certainty” that the applicant’s necessary infection inhibiting antibiotic therapy would progress to include potentially life threatening complications causing increased impairment over time. Therefore, the reservation of jurisdiction was warranted for potential further PD awards.

I am concerned in that this case might be used in other instances where the applicants have been placed on long term medication uses that could result in permanent disability down the road. The first that comes to mind, of course, is given the fact that almost every physician now is prescribing stomach medications to deal with the complications from pain medications that are prescribed for orthopedic injuries.

Certainly anybody who has watched television has seen the numerous medical ads commenting upon the side effects and problems with the long term use of most of the medications that are out there. I think it could be argued given the proper circumstances that orthopedic injuries now might lead to potential long term awards for any stomach problems such as ulcers, etc., as well as any other medical side effects that develop from long term medication usage.

The defense practitioner now is going to need to very careful that the applicant’s attorney does not develop the record along these lines so that we can keep these cases within the five year statutory timeline for permanent disability awards.