The following is the first of a three part series of a medical-legal analysis on the new apportionment rules by Pamela W. Foust that was originally published in the California Society for Industrial Medicine and Surgery (CSIMS) Bulletin. This first part reviews the recent Escobedo decision, the second reviews the legal standard of "substantial evidence" and the third and final part looks at Escobedo as to non-industrial apportionment.

The issue of apportionment of permanent disability has always presented a problem in workers' compensation. However, decades of appellate decisions had fine-tuned the concept to the point that it was at least manageable. Then, SB 899 came along and sent everything back to square one. Apportionment, we were told, would no longer be measured by the disability that the injured worker would have had if he had not been injured at work. From now on the focus would be on causation of disability rather than disability itself, even though this was the exact opposite of what the courts had been telling us for years.

Labor Code sections 4750 and 4750.5 which had governed apportionment of disabilities that developed before or after the industrial injury were repealed. Labor Code section 4663, the former "natural progression" statute was re-enacted in a different form with the introductory statement that "Apportionment of permanent disability shall be based on causation." New Labor Code section 4664 gave us a conclusive presumption of the continued existence of disabilities that were the subject of prior awards.

Determining the underlying causes of a disability can be a formidable task, just as formidable as the task of determining what would have happened if something else hadn't happened. There will always be situations in which the only honest answer to either question is "I don't know." In pre-SB 899 days, a physician's inability to come up with a definitive answer was not crucial. The defendant had the burden of proof and if it did not carry that burden, the applicant was entitled to an unapportioned award. The Legislature eliminated this "escape clause" by providing that if the doctor doesn't make an apportionment determination, the report can't be used as evidence of permanent disability. That means that the issue can no longer be side-stepped as so many doctors had done in the past.

The Escobedo case

During the last year, the entire workers' compensation community was left to grope around in the dark while the Appeals Board and the appellate courts determined which cases would be subject to the new rules, finally deciding that SB 899 apportionment applied to all cases in which there was no final decision on the date that the law was enacted. This meant that pre-SB 899 apportionment was a dead issue. The focus then turned to the more difficult question of how the new rules should be applied in specific cases. On April 19, 2005, the first anniversary of the passage of SB 899, the Appeals Board issued an en banc decision in a case called Escobedo v. Marshalls in which the Commissioners analyzed and applied the concept of apportionment to causation of disability for the first time.

Ms. Escobedo injured one knee and shortly thereafter sustained a "compensatory injury" to her other knee. She also had degenerative arthritis in both knees which pre-existed the injury and which she claimed had previously been neither symptomatic nor disabling. Her treating physician found no basis for apportionment considering the lack of a history of previous knee problems. However, the Board sustained the WCJ who found that the permanent disability should be apportioned equally between industrial and nonindustrial causes, based on the opinion of defendant's QME who stated in his report:

"Although denying any prior problems with her knees, it is medically probable that she would have had fifty percent of her current level of knee disability at the time of today's evaluation even in the absence of her employment at Marshalls."

Ms. Escobedo returned to work briefly after the injury. However, the WCJ rejected her claim of cumulative trauma and she did not dispute this aspect of the decision in her petition for reconsideration.

Certainly Escobedo is a significant case. However it is important not to attach too much significance to the decision and to understand what questions were answered and what questions still remain to be answered.

In its opinion in Escobedo, the Appeals Board made the following pronouncement concerning the new apportionment to causation:

Apportionment of permanent disability caused by "other factors both before and subsequent to the industrial injury, including prior industrial injuries," may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided there is substantial medical evidence establishing that these other factors have caused permanent disability.

So is the Appeals Board saying that doctors are now free to apportion to pathology, asymptomatic prior conditions, and retroactive prophylactic work restrictions? Well, yes and no. Yes, if there is substantial medical evidence to support such an opinion, and no if there isn't. This really doesn't tell us anything that we didn't know before. A doctor could apportion causation of disability to gamma rays from outer space if he could come up with substantial medical evidence to prove it.

The real question that Escobedo doesn't answer except to a very limited degree is: What kind of substantial medical evidence will support a medical opinion concerning causation of disability with respect to both industrial and nonindustrial factors?

This is the question that must be answered in every case in which apportionment is presented as an issue and we will only get definitive answers as cases are decided and tested before the Appeals Board and the appellate courts. Where we will ultimately end up is anyone's guess.

The next part reviews, "What is substantial evidence?"

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