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HOW TO AVOID A “SNATCH DEFEAT FROM THE JAWS OF VICTORY”
When a treating doctor or medical-legal expert issues a permanent and stationary report, the report must include a discussion of whether the injured worker’s permanent disability is caused, in whole or in part, by the industrial injury, or whether there are any non-industrial factors contributing to the applicant’s disability. The doctor will approximate what percentage of the permanent disability was caused as a direct result of injury arising out of and occurring in the course of employment and what percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury. Defendants are only liable for the portion of the injured worker’s permanent disability that is caused by the industrial injury itself. This is known as apportionment.
In order for a finding of apportionment to be considered in determining an applicant’s ultimate permanent disability, such apportionment must be supported by substantial medical evidence. Defendants have the burden of proving that apportionment is supported by substantial medical evidence. There are occasions where we, as defendants, receive permanent and stationary reports providing a favorable amount of apportionment. Attorneys and claims adjusters are excited to report to their clients that the defendant’s permanent disability exposure will be significantly reduced based on the favorable apportionment findings contained within the report. However, as shown in the case of Suguey Moreno v. Kern County Superintendent of Schools (February 28, 2020) 2020 Cal. Wrk. Comp. P.D. LEXIS (“Moreno”), (an Appeals Board (“Board”) panel decision), failure of a defendant to prove that apportionment is supported by substantial medical evidence can erase apportionment altogether, resulting in markedly increased exposure.
RELEVANT FACTS OF MORENO
In Moreno, on March 13, 2012, the applicant sustained an admitted industrial injury to her right foot and low back. Subsequently, the injured worker amended her claim to include injury to her psyche, trunk, lower extremities, urinary/excretory system, gait impairment, neck, and nerve damage.
Applicant eventually underwent a medical-legal evaluation with orthopedic Agreed Medical Examiner (“AME”) Dr. Previte, who diagnosed applicant with a lumbar injury, incontinence, and Syringomyelia – a cervical spine disorder with described Chiari Malformation and cerebellar ectopia with tethered cord syndrome, etiology unclear. Dr. Previte indicated that he was not an expert on the Syringomyelia with Chiari Malformation diagnosis, and the opinion on whether such condition is industrially related should be determined by a neurosurgeon.
Applicant was later evaluated by Dr. Wang, a Qualified Medical Examiner (“QME”) in neurology. In his May 15, 2014 report, Dr. Wang determined that the applicant’s Syringomyelia with described Chiari Malformation was a congenital condition that became symptomatic when it was triggered by the trauma of her industrial injury. Dr. Wang concluded that the injured worker’s industrial injury was the direct cause of her neurological symptoms, and he provided a 15% whole person impairment rating with no apportionment.
On June 18, 2019, Dr. Wang issued a supplemental report at the request of the defendant to address the apportionment findings in his original report. In the supplemental report, Dr. Wang amended his opinion on apportionment and stated, “the apportionment for Mr. Moreno’s industrial diagnosis of Trigger of Chiari Malformation symptom is amended to 60% industrial and 40% nonindustrial.” There was no further explanation provided by Dr. Wang on apportionment.
On October 2, 2015, AME Dr. Previte found applicant to be permanent and stationary and provided an impairment rating for her lumbar spine of 23% whole person impairment, with a 3% pain add-on, plus Dr. Wang’s whole person impairment for the Chiari Malformation and postsurgical residuals. Dr. Previte believed 100% of applicant’s impairment was caused by the March 13, 2012 injury. He added that additional ratings could be offered by a psychiatrist and a urologist.
The applicant was then evaluated by Dr. Chang, a QME in psychology, who issued a report dated June 20, 2017, finding that the applicant suffered from major depressive disorder, single episode without psychotic feature, and had a Global Assessment of Functioning (“GAF”) score of 46 for serious symptoms. Applicant was provided a 38% whole person impairment for her psychological impairment with no apportionment. Dr. Chang found that the applicant was incapable of engaging in vocational rehabilitation.
Ms. Moreno then met with vocational expert Gene Gonzalez on seven separate occasions, who assessed her amenability to vocational rehabilitation. Mr. Gonzalez reviewed the medical reports issued by Dr. Previte, Dr. Wang, and Dr. Chang. He provided a detailed explanation why Ms. Moreno is precluded from returning to the open labor market and concluded that she is 100% permanently and totally disabled.
At trial, the judge concluded that Ms. Moreno is permanently totally disabled and entitled to an award of 100% permanent disability. The judge found that defendant failed to establish that Dr. Wang’s supplemental report providing 40% non-industrial apportionment for applicant’s neurological disorder was substantial medical evidence.
The Board affirmed the judge’s determination that the defendant failed to meet its burden of proof to establish that the non-industrial apportionment was supported by substantial medical evidence and consequently affirmed that Ms. Moreno is permanently totally disabled.
As evidenced by the Moreno case, it is imperative defendants ensure that whenever they obtain a permanent and stationary report containing favorable apportionment findings, that such apportionment is supported by substantial medical evidence. The Board has held that in order for a medical opinion on apportionment to constitute substantial evidence, the opinion must be framed in terms of “reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.” Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 605 (Appeals Board en banc.).
In Moreno, the QME, Dr. Wang, provided a conclusory statement that applicant’s neurological condition was 40% non-industrial. The defendant was delighted to see such a significant finding of non-industrial apportionment, and perhaps expected that the opinion would hold up in court. After all, the opinion was issued by a medical-legal expert. However, the onus is on the defendant to make sure that any such opinion is supported by substantial medical evidence.
It is not enough for a doctor to simply assign a percentage of non-industrial apportionment, as was the case in Moreno. If you are in receipt of a report with a similar conclusory opinion on apportionment, do not assume that such opinion will be approved by a judge in determining an applicant’s permanent disability. Recall that it is the defendant’s burden to prove that apportionment is supported by substantial medical evidence. There are options that must be undertaken prior to settling in order for the opinion to hold up in court.
One option is to write to the doctor requesting a supplemental report explaining the basis of the apportionment determination. The letter should instruct the doctor on what information is necessary in making a determination on apportionment so that any such opinion will be considered substantial medical evidence at trial or during a walk-through of settlement documents.
Another option is to take the doctor’s deposition in order to question the doctor about his or her apportionment opinion. Whomever is questioning the doctor should ask that he or she explain how and why the non-industrial factor is causing permanent disability, and why it is responsible for the amount of non-industrial apportionment provided in the report. Without adequate explanation, any opinion on apportionment will be challenged by the opposing party and likely not be considered substantial medical evidence by a judge.
The important takeaway is that whenever a doctor issues a permanent and stationary report with an opinion on apportionment, the burden is on the defendant to establish that such opinion is supported by substantial medical evidence. Some doctors will provide a detailed explanation of how they reached their conclusions, while others, as an example, will merely state that an applicant’s injury is 20% non-industrial with no further explanation. The burden is on the defendant to do further workup in order to ensure that the apportionment determination will be approved by the judge.
The next time you receive a permanent and stationary report, make sure that any opinion on apportionment is supported by substantial medical evidence. If not, request a supplemental report or take the doctor’s deposition to obtain further explanation on how and why the applicant’s non-industrial factor(s) is responsible for applicant’s permanent disability, whether in whole or in part. Without further workup, the ultimate level of an applicant’s permanent disability could be considerably higher than anticipated.
By Nicolas Scibetta, Esq., Mullen Filippi Walnut Creek Office May 2020