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Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris





You might think from reading the California Constitution that someone who had the misfortune
to have a work injury would not be further punished because they were fat, had genetic defects, or because they were born as one sex or another.

You might also think that someone with multiple disabilities would be considered more disabled than someone with only one disability. That seems logical, doesn't it?

And maybe you think, too, that someone who had no previous or subsequent injuries or disabilities, worked a long time for the same employer, and ended up with a disability as a result of an accident and the continuous micro-trauma of working for that employer, might be entitled to the same amount of permanent disability as someone who had the same disability with the same employer involving either an accident or a microtrauma but not both.

You thought wrong. While the Constitution promises “that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character,” the worker must now engage in long, time-consuming efforts to secure the paltry amount of permanent disability promised under the “reforms” of SB 899. This must occur before the worker can benefit from the voucher system that purports to substitute for vocational rehabilitation. Almost no one uses the vouchers, because there is no provision for payment of living expenses while retraining, and by the time one is entitled to receive the voucher, the injured worker has probably moved away from California or any of the towns or cities within California that have retraining programs, because he or she cannot afford to stay. Or perhaps the injured worker has taken a job as a security guard or such to fend off homelessness.

There are several methods for carving up permanent disability. The first involves attributing part of the cause of the permanent disability to "other factors” that in and of themselves caused no ostensible disability either previous or subsequent to the work injury (LC 4663). The second involves reducing the overall disability because of a previous work injury, whether or not there was any disability at the time of the subsequent work injury, and whether or not the later basis for the disability was an impairment such as a diagnosis-related estimate, which was not present before the work injury (LC 4664). The third method is to take concurrent injuries which caused no previous or subsequent disability, and to make them into two separate injuries, which come out to a smaller amount of money without changing the overall percentage of permanent disability (Benson).

Cal Const, Art XIV § 4 (2005).

The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, … irrespective of the fault of any party. A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers… irrespective of the fault of any party; authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character…

Welcome to the world of apportionment, where angels dance on the heads of pins, women drown while proving they are not witches, and Alice, representing the injured worker, confronts the Red Queen and her bizarre reasoning.

Apportioning to Causation of
Permanent Disability

In the “other factors” situation, a recent case illustrates the pitfalls of this approach. The Agreed Medical Evaluator originally found no basis to apportion to non-industrial causes of the permanent disability: “In terms of apportionment, she is certainly overweight and deconditioned and some of her degenerative bony changes may well be genetic and related to her lifestyle. On the other hand, I cannot say that she would have a disability today absent the work accident and exposure and cannot say with any medical probability what her disability would be today absent her job.”

When asked by the adjuster to review his opinion on apportionment in light of the treater’s report, which the AME previously discounted, the AME opined, “If we put aside the fact that the work injury caused a lighting up, the reality is that the injury by itself does not explain her current disability. Had she been a younger woman and had the same injury, there might well have been no disability. The corollary is also true that absent the work injury, there is no way to ascertain that she would have a disability today….If we are looking at the cause of her disability, I would concur with Dr. [PTP] that 50% is a direct cause of the work injury and 50% is related to underlying genetic and non-industrial habit factors.”

I then wrote to the AME asking him to explain the contradictions in his reports. He issued a third report repeating both contradictory opinions, essentially leaving it to the judge to decide.

At the Mandatory Settlement Conference, the defendant would only offer 50% of the rating. The injured worker sat nearby, a ponderous African-American woman in her 60s who had spent her career steering a bus through city traffic. Most likely when she returned home she sat in a chair and watched TV and ate the American diet. I decided to take my chances with the judge and the substantial evidence rule. Shortly before the trial I received word that the defendant had decided to pay the full amount of permanent disability, without apportionment to these "other factors."

Where do medicine and science end and racial prejudice and other biases begin? In my experience, many physicians look down on the overweight patients that fill their offices. While there may be a scientific basis for concluding that some conditions are the result of obesity, that does not stop these doctors from apportioning to obesity where there is no scientific basis. Or apportioning to age (or avoiding the mention of “age” and referring instead to “degenerative changes” which are caused by age).
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

Earlier this year, Carole Migden, Chair of the Senate Committee on Labor and Industrial Relations, introduced 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.” In view of existing law banning such discrimination in employment, this would seem to be a “no brainer.” But the Chamber of Commerce wailed the familiar “job killer” cry. The “reforms” would disintegrate if we let SB 1115 interfere with apportioning to “other factors” in the nebulous Section 4663 of SB 899.

In the meantime, the "other factors" of LC 4663 have siphoned off permanent disability dollars and given them to defense attorneys so they can reduce what gets paid to the injured worker. The injured worker is no less disabled, simply paid far less. Given the progressive table for calculating permanent disability, even a small reduction can result in a big decrease. The doctors and defense attorneys are invested in the process, as the “need” to take depositions and write supplemental reports benefits them financially.

We went to press before
the Assembly Insurance
Committee hearing date on
SB 1115.
Click here for the status.

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.

Apportioning to Prior Award With Overlapping Disability

The next way to carve up permanent disability is to deduct for a previous work injury, whether or not that injury was still causing disability at the time of the later injury, and whether or not that disability bore any resemblance to the current one. The defendant has the burden of proving overlap [see Kopping v. WCAB, 142 CA4th 1099 (2006)], but how disability under the old Permanent Disability Rating Schedule overlaps with impairment under the AMA Guides remains, four years after SB 899, still undecided.
Labor Code §4664,
in relevant part

(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.
(b) If 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….
(c) (1) As used in this section, the regions of the body are the following:
(A) Hearing.
(B) Vision.
(C) Mental and behavioral disorders.
(D) The spine.
(E) The upper extremities, including the shoulders.
(F) The lower extremities, including the hip joints.
(G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.

For the entire statute,
click here
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.

Diane Benson injured her neck and filed a claim for
a specific injury. The AME found no non-industrial
apportionment but attributed the permanent
disability half to the specific injury and half to a
cumulative trauma ending on the date of the
specific injury. The WCAB found that there were two
separate injuries which had to be rated separately
rather than be combined. The result, given the
progressive money chart, was that Benson got
a lot less PD money than if she had had just the
specific injury.

Defense attorneys have rushed forward to “Bensonize” their cases. What is saved on paying
the injured worker can now be spent on depositions.

Carving up PD is carving up the workers’ compensation bar, which many of us believe is the real reason behind the “reformed” LC 4660, 4663
& 4664 and the 2005 PDRS & proposed new PDRS produced by the ADs, then and now. If the lawyers go, who will cry out against the injustices done injured workers, and against the obscene profit-taking of the insurers?

But some will stay, and in the next issue we will update the law on apportionment and provide
some suggestions on how to attack attempts to
carve up PD.

Benson v. The Permanente Med’l Group et. al. (12-13-07) 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.

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Carving Up PD
By Marjory Harris

Third in a series of editorials on “Workers’
Compensation Disabled: What Went Wrong on the
Road to Reform?” we explore recent trends in
apportionment of permanent disability. In a previous article we discussed the science and the fiction behind Labor Code §4663.
> ACOEM, AMA Guides & FCAs
> Defense Perspective: Settlement
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> Carving up PD
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