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A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management
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Articles emphasizing practical knowledge you
can't find in practice guides
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Profiles of people who changed workers’
compensation law.
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• Warren
Schneider
• Marjory Harris
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SB 899 was hailed
as reform legislation which would, among other things,
prevent employers from having to pay for permanent disability
that was not caused by the particular employment claimed
as the basis for the injury. Revised Labor Code §4663
required that apportionment "shall be based on causation"
and required a physician to "make an apportionment
determination by finding what approximate percentage of
the permanent disability was caused by the direct result
of injury arising out of and occurring in the course of
employment and what approximate percentage of the permanent
disability was caused by other factors both before and
subsequent to the industrial injury, including prior industrial
injuries."
"Science" is not a term used in this legislation.
While the words "scientific" or "scientifically"
appear in SB 899, it is only in relation to medical treatment
guidelines and utilization review. Labor Code §4604.5(b)
requires that the recommended guidelines or the medical
treatment utilization schedule (MTUS) "shall reflect
practices that are evidence and scientifically based,
nationally recognized, and peer-reviewed." No such
requirement was inserted in the revised statute on apportionment.
The Escobedo decision [Escobedo v. Marshalls
(2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc
opinion), pet. for rev. den. sub nom. Escobedo v.
W.C.A.B. (2005) 70 Cal. Comp. Cases 1506 (writ denied)]
provided guidelines for physicians and workers' compensation
administrative law judges for determining whether the
apportionment amounted to "substantial evidence."
In the first article in this series, entitled "Apportionment:
Science or Science Fiction?" we decried the illogical
and confused apportionment opinions of physicians. The
passage of time has not improved the clarity or cogency
of these opinions, whether medical or judicial. Here are
some examples:
After apportioning 30% of the permanent disability in
a knee case to obesity and smoking, the AME testified
in deposition:
Q. And what is
the basis of your attributing 30 percent to nonindustrial
factors?
A. Well, that's probably the toughest
one, and there is some good high-quality studies that
show that things like smoking and obesity have a significant
effect on multiple joints, and in this case, knee, certainly.
Again, those studies don't give you the information to
say 30 percent or 20 percent or 60 percent. So you have
to rely on expert medical opinion again.
Q. Okay. And is her aging process contributing
as a nonindustrial factor to her overall disability?
A. It is, but I would include that in
the obesity part.
Q. How is her obesity contributing to
her overall disability?
A. How is a tough question. I didn't
design this equipment. I just service it. And many times
over -- medical doctors or scientists have sort of thought
logically that just the pressure on the knee may be the
thing that's doing it in this case. It turns out that
the human body is much more complex than that, and we're
fooled many times. So I don't know for sure how. I do
know there's a correlation, a connection. Some people
speculate that the fat cells themselves excrete hormones,
they can tear up joints, because obese people many times
not only have problems with their knees and hips where
they would bear the weight but also their fingers where
you wouldn't expect it.
Q. And how is smoking contributing to
her overall disability?
A. No idea, but it does.
Q. Okay. And what do you base that on?
A. Scientific studies that show an increase
in joint problems in people who smoke.
Q. Okay. Are there epidemiological studies
in this regard?
A. That's right.
Q. Now, if she has problems in her right
knee as a result of smoking and obesity, wouldn't she
have similar problems in the left knee?
A. Well, she may have problems in the
left knee, as we've talked about. I really wasn't focusing
on the left knee. She doesn't have symptoms in the left
knee.
Q. But you're not sure for a fact that
she does?
A. She doesn't have symptoms. That's
what I'm sure of. That doesn't mean she doesn't have arthritis
in there at a level that is subclinical, let's call it.
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Labor
Code §4663,
in relevant part
(a) Apportionment of
permanent disability shall
be based on causation.
(b) Any physician who prepares a report addressing the
issue of permanent disability due to a claimed industrial
injury shall in that report address the issue of causation
of the permanent disability.
(c) In order for a physician's
report to be considered
complete on the issue of
permanent disability, it must
include an apportionment
determination. A physician shall make an apportionment
determination by finding what
approximate percentage of
the permanent disability was
caused by the direct result
of injury arising out of and occurring in the course
of
employment and what approximate percentage of
the permanent disability was caused by other factors
both before and subsequent to the industrial injury,
including prior industrial injuries.
For the entire statute,
click
here
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Apportioning
to Causation of
Permanent Disability
I have read numerous forensic evaluations since the dust
settled in April 2004 and have attended many depositions
since then. I am convinced that most doctors, many lawyers
and almost all claims adjusters think that “substantial
evidence” is established when the doctor utters
magic words like “reasonable medical probability”
and “expert medical opinion.” That somehow
these magic words obviate the need to explain the how
and the why. Escobedo is still the law, and we
must insist on compliance.
Try some IPECAC:
IPECAC Method
– Issue (Is there
any percentage of permanent disability attributable to
factors other than the industrial injury?) If yes, go
to the next step.
– Premise (what
is the physician's premise for apportionment to non-industrial
factors?)(e.g., obesity causes knee problems – epidemiologic
risk factor)
– Erudition,
or knowledge acquired through study and reading, and Evidence.
This is a requirement of the new paradigm of "evidence-based
medicine" (EBM). Anything less is anecdotal and likely
the "ipse dixit" logical fallacy
– Causal relationship
and the weighing of counter evidence: Even if there is
EBM to support the premise, is there evidence that does
not support the premise? In other words, does the EBM
show cause and effect or simply correlation? If not dispositive
of the issue, proceed to the next step (do studies show
that all obese people have knee problems? Or that if bones
are malaligned, obesity then causes problems?)
– Application
and Analysis: how does this relate to the facts of this
case and this injured worker? Connect all the dots! ("This
IW has obesity and malaligned bones")
– Conclusion
re: causation. Is the conclusion logically derived from
the premise, the erudition and evidence, the weighing
of causes and counter evidence, and the facts of the instant
case? If not, examine further for logical fallacies, contrary
studies, and legal attacks based on case law, other laws
such as FEHA, concepts of fairness, Labor Code §3202,
etc. and the like.
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IPECAC
for analyzing apportionment:
Issue
Premise
Erudition
& Evidence
Causal
Relationship &
Counter Argument
Application
& Analysis
Conclusion
re: Causation
Click
here to download a chart to take with
you to depositions. It summarizes IPECAC and includes
questions to support or refute apportionment. |
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Key
Questions to Eliminate or Limit Apportionment
Apportioning to pre-existing
pathology
Q. Is there any indication of disability before the industrial
injury in question?
Q. Absent the industrial injury in question can you say,
without speculating, whether the injured worker would
have a disability today?
Q. What is the scientific basis for apportioning to pathology
in the absence of a history of disability?
Q. Is there any way to predict without speculating when
the silent pathology would have caused symptoms?
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Distinguish
pathology as
the cause of injury from
pathology as the cause
of current disability |
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Apportioning
to genetics, degeneration,
and lifestyle
Q. Please provide any evidence-based studies which show
that such lifestyle and genetic factors actually caused
the disability now experienced by this particular injured
worker?
Q. Doctor, are you saying that if the applicant stayed
at home for the past 33 years, doing light housekeeping,
instead of working those 33 years in heavy labor, he would
still have the same degree of degeneration he has today?"
Q. What medical proof is there for some "natural
degenerative process" that results in spinal disability?
Q. If this is some natural process, why is it only a percentage
of people have it?"
Q. You apportioned to time spent sleeping. Isn’t
sleeping a restorative process?
Q. You have referred to epidemiologic studies as showing
that X can cause Y, but can you say with reasonable medical
probability in this case that X caused Y?
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Apportioning
to Race, Age, Sex, etc.
Q. Doctor, can you separate the aging process from the
[age-related condition]?
Q. Do all people of this [race, sex, age] have this [pathological
condition]? If all do not, then how can you say in this
particular case that the injured worker’s disability
is partially due to his/her [race, sex, age]?
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Government
Code §11135(a)
No person in the State of California shall, on the basis
of race, national origin, ethnic group identification,
religion, age, sex, color, or disability, be unlawfully
denied full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any program
or activity that is conducted, operated, or administered
by the state or by any state agency, is funded directly
by the state, or receives any financial assistance from
the state.
On August 20, 2008, SB 1115 “to bar the consideration
of race, national origin, gender, sex, genetic predisposition,
and certain other factors in the determination of an apportionment
of the causes of an industrial disability,” passed
the State Assembly and went to the Governor.
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Apportioning
to Age vs. Age-Related
Degenerative Conditions
Some more magic dust, please! While the Vaira
case [Vaira v. WCAB (2007) 35 CWCR 307 (CA 3d
non pub)] said that apportionment to age violates the
anti-discrimination provisions of the Government Code,
it allowed apportionment to a prior age-related condition
lit up by the current injury. To avoid this illogical
result, focus on the underlying fact that the condition
is caused by age or degeneration resulting from the aging
process or premature aging due to the type of work the
worker did.
Q. Doctor, can you separate the aging process from the
[age-related condition]?
If the answer is “yes,” probe into the methodology,
scientific studies and the like.
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| Vaira
v. WCAB (2007) 35 CWCR 307 (CA 3d non pub) |
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Apportioning
to CT and Specific Injuries
The third way to carve up permanent disability
is to take a work injury where there was no previous or
subsequent disability, and no apportionment to non-industrial
“other factors,” and to find that some of
the PD is due to the specific event and the remainder
due to cumulative trauma while working for the same employer.
This is the situation in the Benson case which has been
appealed to the First District Court of Appeal.
Q. Did the second injury prevent the first from healing
properly?
Q. Did the first injury render the injured body part sufficiently
weak or sensitive so that it contributed to the damage
caused by the second injury?
Q. Would it be speculative to separate the two injuries
due to the proximity in time when the injuries occurred?
Q. Please explain the medical basis to separate the effects
of the two injuries causing the overall disability?
Q. Is the disability or impairment caused by one injury
so insignificant that all residual disability is attributable
to the other injury?
Q. Is there a synergistic effect between the two (or more)
injuries which does not allow the permanent disability
from one to be separated from the permanent disability
from the others?
Q. Is the overall disability greater than simply the sum
of the injuries, such that each part cannot be reasonably
evaluated separately?
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| Benson
v. The Permanente Med’l Group et. al. (2007)
72 C.C.C. 1260. In an en banc decision, the Workers’
Compensation Appeals Board abrogated the Supreme Court’s
1977 decision in Wilkinson v. WCAB (1977) 19
Cal. 3d 491, 42 C.C.C. 406. The 1st DCA Granted a Writ
of Review on 6/26/08. |
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Maybe
it’s a compensable consequence injury
Q. Without the specific injury, would there have
been a cumulative trauma? Put another way, had IW not
had the specific injury of [DOI] and been examined by
you on [date of exam], would you have been able to diagnose
a cumulative trauma?
Q. How and why does any specific condition found in this
case cause the permanent disability you observed on [date
of exam]?
Q. Without the cumulative trauma, would there have been
a specific injury? Put another way, had IW not had the
cumulative trauma of [DOI] and been examined by you on
[date of exam], would you have been able to diagnose a
specific injury?
Q. How and why does any cumulative trauma found in this
case cause the permanent disability you observed on [date
of exam]?
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Labor
Code §3208.1
An injury may be either: (a) "specific," occurring
as the result of one incident or exposure which causes
disability or need for medical treatment; or (b) "cumulative,"
occurring as repetitive mentally or physically traumatic
activities extending over a period of time, the combined
effect of which causes any disability or need for medical
treatment. The date of a cumulative injury shall be the
date determined under
§ 5412. |
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