Have you ever considered just what the phrase “total knee replacement” means? It seems so self-explanatory that any answer must be, “Well, it means the whole knee has been replaced.”
In reality, we should rename the surgery to “partial bone augmentation” to avoid the confusion that was experienced by an applicant’s attorney during a recent cross-examination of a well-known orthopedic surgeon serving as a panel qualified medical examiner on a case where the applicant had a total knee replacement.
While I was defending this cross-examination, applicant’s attorney very ably laid the foundational questions and basis for why there should be no apportionment to prior non-industrial degenerative changes in the knee, since the “whole knee” had been removed.
Now this strategy is being used by applicants' attorneys on a regular basis with surgeries such as a total knee, hip replacement, shoulder repair and other surgeries that are correcting not only the industrial injury but also correcting the prior nonindustrial complaints. The goal is to get the doctor to testify that the prior injury has been corrected, and therefore there is no basis for apportionment to nonindustrial factors.
When applicant’s attorney asked the doctor if the removal of the knee means that the nonindustrially injured tissue is also gone, the doctor replied, “Oh, no!” The PQME went on to explain that the total knee replacement surgery only removes a portion of the bone in the knee, and the anterior and posterior cruciate ligaments. However, the rest of the knee is still present. All the skin, nerves, muscle, blood vessels, knee cap, medial and lateral collateral ligaments, and the synovium are all still present after the surgery.
The continued presence of the synovium was very significant to the PQME. This portion of the knee swells due to rheumatoid arthritis, and the swelling can cause weakness to the surrounding muscles and ligaments. This weakness results in pain that is felt in the nerves of the synovium. All of this remains after a total knee replacement.
Furthermore, the PQME went on to testify that the portions of the bone that are removed in a total knee replacement do not have pain-sensing nerves, so the procedure will not reduce the overall level of pain. All the portions of the knee that had been damaged by nonindustrial wear and tear, arthritis and inflammation were still present after the total knee procedure, and therefore the apportionment to those nonindustrial conditions should also remain.
The key factor for this orthopedist was the continued presence of the injured tissue and pain receptors that formed the basis for apportionment to the prior injury. The fact that some of the knee bone had been removed was essentially irrelevant for apportionment purposes.
The testimony by the PQME essentially put a stop in this case to any use of Hikida to eliminate apportionment due to subsequent industrial surgery. Expanding the limited holding in Hikida (which held that there is no apportionment to a new injury caused by industrial treatment) is a goal of California Applicants' Attorneys Association, and an understanding of the specifics of a medical procedure, especially a surgery, is essential to countering a claim that apportionment is removed following surgery.
Zane Uribarri is an attorney at Bradford & Barthel’s Ontario office. This entry from Bradford & Barthel's blog appears with permission.
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