Newsletters
Apportionment to Disability v. Apportionment to Injury
This article is a synopsis of an article written by Honorable Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board, found at
dated September 9, 2024.
Essentially, before taking an apportionment issue to trial, you want to make sure your AME/QME has properly provided apportionment to the disability, and not to the injury. In the article from the former Commissioner, she provides examples from three recent WCAB Noteworthy Panel Decisions.
In Cervantes v. Milgard Mfg., 2024 Cal. Wrk. Comp. P.D. Lexis 234, the Applicant injured his lumbar spine while lifting a heavy object. The AME found the disability was due to “surgical treated disc lesion with residual, medically documented pain and rigidity”. Whole Person Impairment was given for the lesions. Apportionment was indicated as 90% from industrial causes and 10% due to pre-existing degenerative disc changes.
The Court found the apportionment invalid because the AME attributed non-industrial factors as a partial cause for the injury, but there is no explanation how the pre-existing degenerative disc changes were a partial cause of the disability, particularly the “surgical lesions”. The WCJ explained in part, “These surgical lesions account for 100% of the Applicant’s lumbar disability. His symptoms and loss of ROM were the result of industrial factors. While certain unexplained and asymptomatic degenerative conditions could have existed, there is simply no explanation as to how they contribute to the present disability. … [The AME] may have felt that degenerative conditions may increase vulnerability to injury, but he does not explain how they presently cause any of the present disability.”
In Arias v. Williams Roofing Co., 2024 Cal. Wrk. Comp. P.D. Lexis 29, the Applicant fell 9 feet from a roof onto his buttocks causing injury to his lumbar spine. The AME states the following for apportionment, “The approximate percentage caused by the industrial injury is 75% and the remaining 25% is secondary to the preexisting congenital lumbar spinal stenosis. From the anatomical standpoint, the patient has a narrowed lumbar spinal canal that places him at increased risk for disability due to trauma.”
As in the previous case, the WCJ found apportionment was to injury, not to disability. “In concluding that 25% of applicant’s lumbar spine disability is secondary to preexisting congenital lumbar spinal stenosis, i.e., a narrowed lumbar spinal canal that placed applicant at increased risk for disability due to trauma, [The AME] actually apportioned to the cause of applicant’s industrial injury – he was at an increased risk of injury due to his narrowed spinal canal – rather than to the cause of applicant’s disability at the time of [his] evaluation. In doing so, [the AME] mistakenly equated a contributing factor in applicant’s industrial injury to a contributing factor in his post-injury permanent disability. This is not substantial evidence of apportionment, because the analysis of the issues of causation of injury and causation of disability is different in this case. The fact that applicant had a narrow spinal canal that may have made him more susceptible to injury in the first place does not mean that his narrow spinal canal is causing permanent disability now.”
Finally, in State of CA v. WCAB (Ham) (2019), 84 Cal. Comp. Cases 1006 (writ. den.) (5th DCA), the Applicant suffered a partial amputation to the left foot. A blister occurred as a result of wearing work boots. That blister got infected after subsequently contracting Methicillin-resistant Staphylococcus aureus (MRSA). Both internal and orthopedic AMEs opined that the applicant’s pre-existing diabetes was a contributing factor to the MRSA and ultimate partial amputation. Specifically, both doctors felt the diabetes was a contributing factor to the amputation and the amputation was the cause of the impairment. Therefore, the orthopedic disability should be apportioned between the work injury and the diabetes.
However, the WCAB said that medical treatment is not apportionable (per Granado v. WCAB (1968) 33 Cal. Comp. Cases 647). They felt that neither doctor explained how and why the diabetes was causing impairment, or how and why the diabetes was responsible for the impairment value they assigned. The WCAB panel majority concluded the apportionment opinions of the doctors were based on incorrect legal theories and did not constitute substantial medical evidence.
In conclusion, it is not always easy to distinguish between apportionment to injury versus apportionment to disability. In all three cases mentioned above, AMEs were used. In each case, the AME mistakenly apportioned to the injury and not the disability, i.e., even trusted evaluators can get it wrong. A careful analysis of apportionment opinions must always be done to ensure you are ready to proceed to trial. To have a substantial medical opinion on apportionment, make sure your evaluator provided apportionment to the disability, and not the injury itself.