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Workers' Compensation

How to Analyze Apportionment – by Judge Eric Ledger

Disclaimer: the following thoughts and opinions are those solely of the author, Judge Eric Ledger, and do not reflect the opinions or positions of any other entity, including but not limited to the State of California or the Department of Industrial Relations. While I strive to be accurate in my opinions, I am only human. I am always open to persuasive legal argument and the opinions expressed herein may change depending upon the facts of a case or any new developments in the law. These opinions should be taken with a grain of salt and are presented for informational purposes only and not as legal advice.

Section 4663 states, in pertinent part: “(a) Apportionment of permanent disability shall be based on causation.” (§ 4663(a).) There remains significant confusion amongst the bar as to the issue of apportionment of permanent disability per Labor Code, section 4663. One particularly confusing area, and the focus of this article, is what exactly it means to apportion the causative sources of permanent disability. Most workers’ compensation practitioners are familiar with the line that apportionment is to causation of disability and not to causation of injury. I’m presupposing that the readers of this article are also familiar with the two seminal cases on apportionment under section 4663, which are Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc) and Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1326 (Brodie).) If you have not read those cases and you are litigating apportionment STOP NOW. Look them up. Read them. Now you may continue.

A significant paragraph in Brodie is the definition of permanent disability, which follows:

Permanent disability is understood as the irreversible residual of an injury. (Citation.) A permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market. (Citation.) Thus, permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity. ( Brodie, supra at 1320 (citations and quotations omitted).)

Apportionment is to causation of disability and not causation of injury, but what does that mean? How do we distinguish between causation of disability and causation of injury?

I recommend the following analysis:

  1. Define the injury.
  2. Determine the cause(s) of the injury.
  3. Define the disability resulting from the injury.
  4. Determine the cause(s) of the permanent disability.

Here is an example: A 60 year-old woman has significant osteoporosis. She trips and falls while at work, breaking her femur.

Define the Injury

The injury is a fractured femur.

Determine the Cause(s) of the Injury

There is only one cause of injury in this example, that is the trip and fall, which applied significant force to the bones causing them to fracture. In other words, applicant could have continued on with her osteoporosis without suffering any fracture to her femur. While osteoporosis may have made applicant more susceptible to bone fracture, that fact is immaterial to the analysis of causation of injury. The trip and fall proximately caused the fractured femur. The cause of injury is 100% industrial.

If this part is confusing, I would recommend reading South Coast Framing, wherein the Supreme Court thoroughly discusses finding causation of injury and notes:

A corollary of the no-fault principles of workers’ compensation is that an employer takes the employee as he finds him at the time of the employment. (Citations.) Thus, an employee may not be denied compensation merely because his physical condition was such that he sustained a disability which a person of stronger constitution or in better health would not have suffered.

(South Coast Framing v. Workers’ Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300 (citations and quotations omitted).)

Define the Disability

This is the permanent disability rating provided to the injury. For this example, the injured worker healed well following the fracture, however there was a minor limb length discrepancy of 2 cm, which rated to 2% WPI per Table 17-4, p. 528 of the AMA Guides. (American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides).)

Determine the Cause(s) of the Disability

This tricky part confuses many practitioners. Look only to the disability and what caused that disability. Here, the disability is a 2 cm limb length discrepancy. Unless osteoporosis is contributing to this (and for this example I will say it isn’t), the cause of the limb length discrepancy is solely the fractured femur. The permanent disability resulting from this hypothetical injury is 100% industrial. That is, the 2 cm limb length discrepancy (the disability) was solely caused by the industrial injury. If some alternative impairment rating was provided under the AMA Guides and the osteoporosis was contributing to that impairment, apportionment would be proper.

I think people get confused because in some cases the causes of injury and the causes of disability parrot each other. This can be done so long as it is explained. I have seen this occur most frequently when the doctor assigns a diagnosis estimate under the AMA Guides. Where the diagnosis (i.e. injury) equates directly to impairment (i.e. permanent disability) the causation opinions are often the same. That does not mean that they have to be the same. Don’t blur the analysis.

A good example of the above would be a partial tear of the medial meniscus. This would rate to 1% WPI per Table 17-33 of the AMA Guides (p. 546). The injury is a partially torn medial meniscus. Assuming no complications, the disability is also a partially torn medial meniscus, which assigns disability solely based upon the injury diagnosis. Where the disability is automatically assigned by the AMA Guides as the result of a sustained injury, the causation opinions tend to overlap. Don’t let this confuse you. Recognize when there is overlap in the analysis of injury and disability and recognize when there is no overlap.

Apportionment based on causation can include apportionment to conditions that existed prior to the injury, but were not labor disabling. Just because the condition was asymptomatic does not mean that it cannot contribute to the cause of permanent disability. This is another confusing concept about apportionment:

“Apportionment to risk factors is not allowed.” This statement is true, but perhaps inarticulate and confusing. A more accurate statement follows:

Where any condition is proven to cause a portion of the permanent disability, apportionment is allowed. Where any condition has merely put applicant at an increased risk of sustaining injury or sustaining damages from injury, apportionment is improper.

The problem here is the semantics of the term ‘risk factor’. I prefer to use the term ‘condition’ because that term is interchangeable as between the analysis on causation of injury and causation of disability. The term ‘risk factor’ is not interchangeable. Osteoporosis can be a risk factor for fractured bones, but it cannot be a ‘risk factor’ for apportionment of permanent disability. Either the condition is causing an increase in permanent disability or it is not. Where osteoporosis (or any condition) is causing permanent disability, apportionment is allowed. Where osteoporosis merely made applicant more susceptible to sustaining damage, apportion is disallowed. Defendant is liable for all of the damages caused by the injury (but only the damage caused by the injury). The fact that an individual is more susceptible to sustaining damages is immaterial. That is why it is said you cannot apportion to “risk factors”. In the above scenario, applicant had risk factors for sustaining broken bones, such as age and osteoporosis. However, we are looking solely at the cause(s) of permanent disability, not injury. Where any condition goes beyond speculation and is proven to cause increased permanent disability, apportionment is allowed to that condition.

© Copyright 2019 Eric Ledger. All rights reserved. Reprinted with permission.

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