Wednesday, June 15, 2011

Apportionment Fight in CA - What Did You Expect?

The California Senate Judiciary Committee on Tuesday passed AB 1155 by Assemblyman Luis Alejo, D-Salinas, on a 3-2 vote, with Democrats supporting it and Republicans opposed.

The bill would amend California Labor Code Section 4663 by adding language to provide that certain characteristics, including race, age, and gender, shall not be considered a cause or factor of a disability with regard to apportionment determinations. Similar bills were presented to Governor Schwarzenegger twice previously and vetoed both times.

The argument for the bill is that injured workers within a "protected class", such as gender, are having adverse disability rulings because doctors are apportioning to immutable characteristics of that class - e.g. apportioning to osteoporosis in a woman even though there was no evidence that disability from such condition preexisted the industrial injury.

Opponents of the bill say that it would increase costs because there would be more litigation over apportionment, and would increase permanent disability indemnity costs as more cases would have less apportionment found.

Both of these arguments have some merit, but the real cause of the apportionment debate stems not from the law, but from the medicine.

Labor Code section 4663 states that apportionment must be based on causation

Subsection (c) states in relevant part; "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." (Italics & bold added for emphasis).

The problem stems from physicians writing reports allowing pathology to substitute for causation, regardless of the lack of any pre-existing disability. I have read many, many medical reports that will apportion, for example, a woman's orthopedic disability to osteoporosis where prior to the injury there was no evidence that such condition was disabling.

Since the standard for evidence in California workers' compensation is a low threshold, "substantial evidence," then such a medical opinion can control the case.

The issue isn't what the law says or doesn't say, the issue is the quality of the evidence. 

In our WorkCompCentral Education department we teach a course on medical report preparation. I get the inglorious job of grading medical reports. Let me just say this simply - the quality of reporting is abysmal, with complete disregard for facts and utter misunderstanding of the legal requirements.

Physicians need education and guidance regarding the interpretation of the law as it applies to the preparation of evidence. The standard of apportionment in Labor Code section 4663 is easy enough to comprehend - "caused" is past tense looking retrospectively at "direct result" - if a disability did not exist prior to the injury, then the injury caused the disability. There should be no argument after that analysis and anything else is speculation.

1 comment:

  1. David,

    Time for a class on just this subject! Pam Foust, Coleen Casey and me.