by 'Jake' Jacobsmeyer
The WCAB has issued a new en banc
decision , Vargas vs. Atascadero State Hospital
, on apportionment and Petitions to Reopen for New and Further Disability specifically determining that the provisions involving apportionment under SB 899 apply to the Petition to Reopen. In a unanimous decision (with two commissioners providing concurring opinions) the WCAB held:
(1) The new apportionment provisions of SB 899 apply to the issue of increased
permanent disability alleged in any petition to reopen (see sections 5803, 5804, 5410) that was pending at the time of the legislative enactment on April 19, 2004, regardless of date of injury;
(2) Consistent with Section 47 of SB 899, the new apportionment statutes cannot be used to revisit or recalculate the level of permanent disability, or the presence or absence of apportionment, determined under a final order, decision, or award issued before April 19, 2004; and
(3) In applying the new apportionment provisions to the issue of increased
permanent disability, the issue must be determined without reference to how, or if, apportionment was determined in the original award.
This case came to the WCAB on a Petition for Removal filed by the applicant challenging a WCJ's order re-opening the record to develop the issue of apportionment under SB 899. The applicant has an existing award of PD of 67% determined based upon a commonly called "baseball arbitration" decision under the former Labor Code Section 4065 (the actual rating had been 71% but since the Applicant had submitted a rating of 97%, defendant's 67% was selected as it was closer to the recommended rating).
The new disability includes several parts of the body where no rating was included as part of the original award (ie: TMJ and psyche). The WCJ had obtained a new recommended rating of 91:2% before consideration of apportionment.
Commissioners Caplane and Rabine make it clear in their concurring opinion that, given a choice, they would not agree with the decision based on their interpretation of Section 47 of SB 899. However both noted that the language of the Court of Appeals in Marsh v WCAB,
70 Cal. Comp. Cas 787 compelled this result. As noted in the concurring opinion "...that train has already left the station".
The actual mechanics of applying apportionment in such cases is likely to prove more complicated as was also noted in the concurring opinion:
"As it happens, the new and further disability, if any, in this case appears to be attributable to compensable consequences (TMJ, psyche). Therefore, the application of the apportionment statutes to these disabilities would be no more complicated than to disabilities subject to initial determination (that is to say, very complicated). But in the garden-variety petition to reopen, where there is, for example, a back injury with a pre-existing disease process not subject to apportionment at the time of the original award, the evaluating physicians will have to determine not only whether there is any new and further disability, but also whether any of that disability is attributable to the natural progression of the underlying disease process from the date of the original award through the date of the subsequent evaluation. It is conceivable that physicians will be able to make these determinations, but the difficulty is extraordinary."
We can certainly anticipate considerable difficulty in getting physicians to appropriately evaluate apportionment in such cases given the continuing glut of litigation over the issues and the stream of mis-information that is directed at convincing physicians that any opinion on apportionment is "speculative" and should be avoided.
At some point the WCAB is going to have to tackle the lack of substantial evidence in many cases to support the applicant's
burden to provide substantial evidence
of the approximate percentage of the PD that is attributable to the industrial injury as required in Escobedo v Marshalls
, an issue which as yet has been virtually ignored at both the trial level and the WCAB. All too often the only opinion on how much of the PD was caused by the work events is expressed as a reluctance to express an opinion on how much of the acknowledged non-work related factors are contributing to the level of PD and therefore no apportionment is given. I have seen many physicians who refuse to apply the correct legal standard on apportionment by still insisting that there cannot be apportionment unless they can conclude there would be PD absent the work injury, a standard that applied under the old law, but clearly no longer. Such opinions is clearly not "substantial" evidence and represents a failure on the part of the applicant to meet their burden under Escobedo v Marshalls
1 and Labor Code Section 3202.5.2
1. In Escobedo the WCAB made it clear that there was a change in the burden of proof on causation of PD. Holding #3 states: Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors.
2. Labor Code Section 3202.5 provides: All parties and lien claimants shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence in order that all parties are considered equal before the law.
By attorney Richard "Jake" Jacobsmeyer, managing partner of the Concorde office of Adelson, Testan, Brundo & Popolardo. Jake can be reached at firstname.lastname@example.org.
The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.