apportionment under the ama guides - ccwcworkcomp.org · internal medical injuries, aka “ortho,...

Apportionment Under The AMA Guides

By Robert G Rassp Esq rrasspcscom wwwfriendsresearchorg

bull The term substantial MEDICAL evidence means in your role as physicians that you provide medical conclusions that are based on objective findings subjective complaints and your clinical judgment that are reasonable in nature credible and of solid value and that a rational person might accept as sufficient to support a conclusion (Braewood Convalescent Hospital v WCAB (1983) 34 Cal 3d 159 164 193 Cal Rptr 157 48 Cal Comp Cases 566)

bull The term ldquosubstantial evidencerdquo means items of ldquoevidence that are reasonable in nature credible and of solid value and that a rational person might accept as sufficient to support a conclusionrdquo (Braewood Convalescent Hospital v WCAB (1983) 34 Cal 3d 159 164 193 Cal Rptr 157 48 Cal Comp Cases 566) Supreme Court of California decision

bull ldquoReasonable Medical Probabilityrdquo = means that there is at least a

51 probability that something is true bull It is somewhat higher than the ldquopreponderance of evidencerdquo legal standard

that means a feather of weight that is greater than 50 probability of truth or ldquomore probable than notrdquo

bull Case law allows a physician to state what ldquoapproximate percentagerdquo of

permanent disability is work related and what approximate percentage is non-industrial to a degree of reasonable medical probability See Marlene Escobedo vs Marshalls (2005) 70 Cal Comp Cases 604 (WCAB en banc decision) EL Yeager Construction vs WCAB (Gatten) (2006) 145 Cal App 4th 922 52 Cal Rptr 3d 133 71 Cal Comp Cases 1687

bull Labor Code Section 4663(a)

bull ldquoApportionment of permanent disability shall be based on causationrdquo

bull Sub-section (b) of Section 4663 mandates all physicians who address the issue of permanent disability must make an apportionment determination

bull Sub-section (c) mandates that in that determination of apportionment the physician shall make a finding as to ldquowhat approximate percentage of the permanent disability was caused by the direct result of injury [AOECOE] and approximate what percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury including prior industrial injuriesrdquo


bull ldquoThe employer shall only be liable for the percentage of permanent disability directly caused by the injury AOECOErdquo

bull Subsection (b) mandates that ldquoif the Applicant has received a prior award of permanent disability it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury This presumption is a presumption affecting the burden of proofrdquo

bull Subsection (c) simply says that no region of the body can exceed 100 permanent disability over the life time of the injured worker

bull The focus of this presentation is on ldquocross-overrdquo cases ndash in

which there are alleged orthopedic psychiatric and internal medical injuries aka ldquoortho psyche and internalrdquo

bull Further focus is on apportionment between separate injuries where both have the AMA Guides apply

bull The roles of the doctor the WCJ the WCAB and you

bull The take-aways today apply to all issues of developing the record before during and after trial

bull Radiator USA vs WCAB (2015) 80 Cal Comp Cases 79

(Kang) bull Embarrasses the parties the WCJ and the WCAB

bull Admitted specific injury for truck driver to his back diagnosis of

osteoporosis sleep disorder and depression

bull AME ortho (Pechman) opines MMI 50 PD due to industrial injury 50 due to non-industrial osteoporosis

bull AME in rheumatology (Dr Bluestone) says IW has osteoporosis that is non-industrial but IW also is depressed with a sleep disorder


(Kang) bull Treating psychologist Dr Nogales says IW ldquoprobablyrdquo meets the

51 threshold of compensability for psyche and sleep disorder says IW is TTD but wants to review other doctor reports employment records and Applicantrsquos deposition

bull Case goes to trial WCJ finds compensable psyche and sleep disorder TTD status

bull Def appeals and WCAB panel upholds WCJ bull Court of Appeal reverses and uses harsh language towards the

parties the WCJ and the WCAB


(Kang) bull The WCAB as an administrative agency has an affirmative duty to

develop the record especially if medical evidence is evenly balanced on the issue of industrial causation

bull ldquoThe medical reporting in this case had a serious flaw which the appeals board should have recognized and had the responsibility to curerdquo

bull ldquoWhile the defendant could have acted more vigorously it is also true that the WCAB may not leave undeveloped matters which it acquired its specialized knowledge should identify as requiring further evidencerdquo


(Kang)

bull The duty to develop the record under McDuffie vs LACMTA (2002) 67 Cal Comp Cases 138 (WCAB en banc decision)

vs bull The WCJ not bailing out a negligent attorney under San

Bernardino Community Hospital vs WCAB (McKernan) (1999) 74 Cal App 4th 396 94 Cal Rptr 2d 516 64 Cal Comp Cases 986

bull If a physician fails to provide an apportionment analysis then the report does not constitute substantial medical evidence bull Does this mean the Applicant has the burden of proof

bull See Marlene Escobedo vs Marshalls (2005) 70 Cal Comp Cases 604

(WCAB en banc decision) EL Yeager Construction vs WCAB (Gatten) (2006) 145 Cal App 4th 922 52 Cal Rptr 3d 133 71 Cal Comp Cases 1687 Benson vs WCAB (2009) 170 Cal App 4th 1535 74 Cal Comp Cases 113

bull Developing the record in psyche cases bull Causation of injury vs causation of PD bull Rolda vs Pitney Bowes Inc (2001) 66 Cal Comp Cases 241

(WCAB en banc decision) bull PD determination includes apportionment of PD and may differ

from analysis of causation of injury

bull If a psyche or internist hitches his or her wagon on apportionment by an orthopedic surgeon bull Other physicians must indicate how and why they agree with the

ortho based on their own expertise bull If other physician says the injuries are ldquoinextricably intertwinedrdquo

and PD cannot be apportioned between multiple injuries the physician must state how and why he or she came to this conclusion and why he or she is not following the orthopedic apportionment

bull What does Benson really say about this bull Benson vs WCAB (2009) 170 Cal App 4th 1535 74 Cal Comp Cases 113

APPORTIONMENT CONSIDERATIONS

In considering apportionment a physician should determine apportionment of permanent disability utilizing the following factors bull How severe a specific injury was in terms of impact (eg did the

Applicant fall 3 feet off a chair or 12 feet off a ladder) bull How arduous was the Applicantrsquos job as performed bull Was there a gap in medical treatment to the same part of body from

a prior injury (industrial or non-industrial prior injury)


In considering apportionment a physician should determine apportionment of permanent disability utilizing the following factors bull Was there continuous treatment from a prior injury to the same part

of body that led up to a more recent injury bull Did the Applicant recover from a prior injury to the same part of

body bull What does the diagnostic imaging studies show after a prior injury or

from prior medical treatment for a non-industrial condition to the same part of body

bull Look at the chronology of medical events from when there were no

signs symptoms or complaints to the present time

APPORTIONMENT CONSIDERATIONS ndash Prior Awards

bull What if there is a prior award and the Applicant has a new injury bull Apportionment of permanent disability has to be addressed by the

treating and evaluating physicians Apportionment under Section 4664 occur under two circumstances and results in a conclusive presumption bull Prior award is based on the 1997 PDRS or earlier version (based

on work restrictions) and new injury is based under the AMA Guides 5th Edition or

bull Prior award is based on a post 1105 date of injury or otherwise was based on the AMA Guides 5th Edition and new injury is also under the AMA Guides 5th Edition

APPORTIONMENT CONSIDERATIONS ndash Prior Awards 1997 v 2005 PDRS

bull If a prior award was based on the 1997 or earlier PDRS then you cannot simply subtract a prior permanent disability rating from the current one that is based on the AMA Guides This is because it would be like comparing apples to oranges

bull See for example County of Los Angeles vs WCAB (Barnett) (2010) 75 Cal Comp

Cases 155 (writ denied) Minvielle vs County of Contra Costa (2010) 76 Cal Comp Cases 896 writ denied)

bull Remember before you can apportion permanent disability you must rate

permanent disability and adjust for DFEC [or adjustment factor of 14 if the date of injury is on or after 1113] age and occupation first Then you apply apportionment under Sections 4663 or 4664

APPORTIONMENT CONSIDERATIONS ndash Prior Awards 1997 PDRS v 2005 PDRS

bull If prior award was based on grip loss using work restrictions (no repetitive

gripping grasping and fine manipulation) from carpal tunnel surgery 15 PD

bull Post 1105 AMA injury was a fractured wrist rating was also based on grip loss

bull WCJ allowed the subtraction method because the same AME evaluated both cases and conducted the grip testing the same way in both evaluations (Dynamometer setting ldquoBrdquo) indicating same in the AME report for AMA injury case


bull Remember WPI is based on anatomic loss diagnosis related or functional loss

bull What was DOI 1 WPI based on

bull What is the WPI rating for DOI 2 based on

bull Can you subtract a prior PD based on diagnosis related rating from a current functional loss rating

bull Can you subtract a prior PD based on functional loss WPI rating from a current functional loss rating

bull What if one or both ratings for DOI 1 and DOI 2 are based on A-GIII


bull For apportionment under Labor Code Section 4664 between a prior award that was based on the AMA Guides and a new injury involving the same part of body you must take these steps

bull How was prior WPI determined EG DRE vs ROM for spine bull How is current WPI determined bull What were the objective findings for prior rating vs current one bull Is there overlap between the prior permanent disability and the current one bull An Applicant cannot claim he or she recovered from a prior injury that resulted

in an Award if apportionment is established under Section 4664 prior award bull An Applicant can claim he or she recovered from a prior permanent disability if

apportionment is under Section 4663


bull For example if a knee injury in 2005 rated 5 permanent disability based on a torn medial meniscus repair and a new 2014 injury involves a torn lateral meniscus repair there would be no apportionment under Section 4664 because the new knee impairment involves a different part of the knee

bull However if the prior award is based on consideration of Almaraz-Guzman III [Milpitas USD vs WCAB (Guzman) 187 Cal App 4th 808 115 Cal Rptr 3d 112 75 Cal Comp Cases 837] in terms of loss of function the current rating may be reduced by all or part of the prior rating depending on overlap

bull Defendants have the burden of proving overlap between the prior award and the new rating See Kopping vs WCAB (2006) 143 Cal App 4th 1099 71 Cal Comp Cases 1229



bull EG Prior medial meniscus injury is rated based on Table 17-5 antalgic gait under AG-III and new injury WPI is based on Table 13-22 Station and Gait you might be able to argue about subtraction

bull Defendants have the burden of proving overlap between the prior award and the

new rating See Kopping vs WCAB (2006) 143 Cal App 4th 1099 71 Cal Comp Cases 1229

bull Sanchez case Old injury is ankle sprain = 7 PD based on subjective complaints new injury was a fractured ankle resulting in loss of ROM no apportionment



bull Class 1 9 WPI from Table 13-15 minus 7 WPI from Table 17-5


bull Defendants have the burden of proving overlap under the Kopping case which has proven to be elusive if not impossible

bull If the prior 2005 knee injury in the example above had been rated based on the injured worker having an antalgic gait (Table 17-5) and the current rating for a 2014 injury is based on a total knee replacement (Tables 17-35 and 17-33) then defendant would have a hard time proving overlap

bull On the other hand if the prior 2005 injury award was based on arthritis of the medial lateral or patellofemoral compartment (Table 17-31) and the current rating was based on a total knee replacement then there is total overlap and defendant could make the argument to subtract the prior award from the current one pursuant to Labor Code Section 4664(b)

Knee-------------------------

The more points the better the total knee replacement result Table 17-33 TKR


bull How about an old 2005 shoulder injury eg impingement of sub-acromion with bone spur removal from distal head of humerus

bull New injury in 2014 is distal clavicle resection arthroplasty and rotator cuff repair

N Arthroplasty = removal of the joint

Case Example 5


bull Otherwise if Defendant is not able to prove overlap then the remaining argument regarding apportionment defaults to an analysis of apportionment under Labor Code Section 4663 ndash what percentage of the current disability is caused by the 2014 injury and what percentage of the current disability is due to other factors including the prior award


bull What if the prior award in a 2005 lumbar spinal case was based on the DRE method letrsquos say DRE Category II 5 WPI and the new 2014 injury to the lumbar spine now rates DRE Category III 13 WPI

bull Do you automatically subtract the prior award under Section 4664 apportionment If not how does LC 4663 apportionment work

bull Again defendant would have to prove overlap for the LC 4664 presumption It seems that the analysis of overlap is a medical question as much as it is a legal concept


bull If the prior award involved an L4-L5 problem without radiculopathy and the new injury involves a herniated disc at L5-S1 then there is no overlap bull However if prior award was based on AG-III thenhellip

bull Plus the DRE III rating is due to a radiculopathy that did not exist

from the prior 2005 injury

bull If both injuries involved the same level of the lumbar spine then you have a fairly good argument of overlap but that must be established medically by a treating or evaluating physician


bull What if the prior award was based on DRE and the new injury is based on ROM

bull Can there be overlap

bull There is no case law on this issue yet but it is likely to arise soon It is probable that counsel would have to focus on the medical diagnosis the levels of pathology and the cause of permanent impairment for each injury to determine if overlap exists


bull If the prior award was based on ROM and the new award is based on ROM then it is possible to prove overlap with subtraction of permanent disability under Section 4664(b)

bull In that event the issue is whether the ROM measurements are conducted the same way between the earlier MMI evaluation and the more recent one

bull Moreover Table 15-7 will be the final determinate of whether true overlap occurs because the ROM method relies on a spinal diagnosis that could be totally different between two or more injuries to the same sub-region of the spine If there are different spinal diagnosis for each injury from Table 15-7 then there probably is no overlap unless defendant would be able to convince a physician how overlap can occur when the spinal diagnosis between two or more injuries are different

Case Example 4

bull What about LC 4663 apportionment to risk factors

bull An extra rib for thoracic outlet syndrome bull A down-sloping acromion for shoulder impingement bull High cholesterol for heart disease bull The aging process for osteoporosis

bull See eg American Airlines Inc vs WCAB (Milivojevich (2007) 72 Cal Comp

Cases 1415 (writ denied) [high cholesterol is only a risk factor for heart disease ndash it is not causative of permanent disability] Vaira vs WCAB (2008) 72 Cal Comp Cases 1596 (DCA opinion not published in official reports)[73 year old has fractured vertebral body with long lasting osteoporosis remanded for further development of the record to determine how long person has a disease process dictates potential apportionment not the personrsquos age]

Take Aways

bull Physicians need to separately and thoroughly address apportionment of permanent disability based on his or her own independent analysis

bull If a physician relies on another physicianrsquos apportionment analysis he or she must

state how and why he or she agrees with the apportionment eg internal medicine or psychiatric AME or PQME adopts apportionment based on orthopedic surgeonrsquos conclusion

bull The parties need to develop the record on causation of injury causation of

permanent disability and apportionment when the Applicant is MMI prior to trial bull Do not sit idly by while the record in a case is deficient on crucial medical-legal

issues (Lawrence Lorenz vs Encino Hospital 2014 Cal Wrk Comp PD LEXIS 410)

Take Aways

bull Judges need to be arbiters of the record ndash to make sure conclusions of physicians are based on reasonable medical probability

bull The WCAB panels should not have to develop the record when the

parties and the trial judge already had the best opportunities to do so

bull A WCJ may write a post-trial letter to a physician to develop the

record provided that the parties have an opportunity to object bull If apportionment between industrial injuries cannot be parceled out

then the physician must state why they cannot be parceled out bull Apportionment under Labor Code Section 4664 is difficult since

defendants have the burden of proving overlap

Take Aways

bull Apportionment between prior injuries rated under the AMA Guides and new injuries under the AMA Guides is also difficult under both Labor Code Sections 4663 and 4664 which requires medical analysis

bull Most cases will result in apportionment under Section 4663 if there is more than

one industrial injury to the same part of body using the AMA Guides especially if alternative rating methods were used in the prior injury or in the new one

bull An Applicant cannot claim he or she recovered from a prior injury that resulted in

an Award if apportionment is established under Section 4664 prior award because of the conclusive presumption

bull An Applicant can claim he or she recovered from a prior permanent disability if


Substantial Medical Evidence


AMA Guides and Apportionment





































State Bar WC Section AMA Guides Webinar





Thank You for your Attention

bull The term substantial MEDICAL evidence means in your role as physicians that you provide medical conclusions that are based on objective findings subjective complaints and your clinical judgment that are reasonable in nature credible and of solid value and that a rational person might accept as sufficient to support a conclusion (Braewood Convalescent Hospital v WCAB (1983) 34 Cal 3d 159 164 193 Cal Rptr 157 48 Cal Comp Cases 566)

bull The term ldquosubstantial evidencerdquo means items of ldquoevidence that are reasonable in nature credible and of solid value and that a rational person might accept as sufficient to support a conclusionrdquo (Braewood Convalescent Hospital v WCAB (1983) 34 Cal 3d 159 164 193 Cal Rptr 157 48 Cal Comp Cases 566) Supreme Court of California decision





































(Kang)






































































Knee-------------------------






Case Example 5




















Case Example 4





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(Kang)






































































Knee-------------------------






Case Example 5




















Case Example 4





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Knee-------------------------






Case Example 5




















Case Example 4





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Case Example 5




















Case Example 4





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Case Example 4





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Take Aways








Take Aways

























































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apportionment under the ama guides - ccwcworkcomp.org · internal medical injuries, aka “ortho,...

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