Wednesday, July 17, 2013

Apportionment Frustrations

Apportionment is one of those aggravating legal concepts that befuddle everyone with its technical intricacies, and is particularly frustrating to employers who feel unfairly penalized for disability not entirely caused by their industrial claim.

WorkCompCentral News this morning highlighted the confusion with a story on two similar claims with very different outcomes, likely to cause a bit of consternation to the employer community.

The first case is Acme Steel et al. v. WCAB, No. A137915, where the 1st District Court of Appeals in California rejected a ruling that did not apportion any part of Michael Borman's disability for progressive hearing loss when there was a pre-existing Findings and Award for hearing loss due to a 1993 explosion at work.

Borman had received a stipulated award based on a 22% permanent disability rating for the 1993 injury. As time passed, however, his condition worsened.

Borman filed a claim for benefits asserting he was permanently and totally disabled because his total hearing loss left him without any future earning capacity.

The Workers' Compensation Judge ruled that he was entitled to a Permanent Total Disability award because there was no possible job that could accommodate Borman's difficulty with oral communication and other physical limitations. The WCJ rejected apportionment to Borman's prior hearing loss claim since he had suffered no loss of earnings as a result of that injury.

I will stop the discussion here to pause and reflect on this rationale.

I know that permanent disability is a legal fiction. But that legal fiction has some basis in fact, otherwise it would not become a part of the culture.

That legal fiction is that, at least with regards to why permanent disability indemnity exists for injuries in the 1993 era, there is some diminution in the ability of the injured worker to compete in the open labor market.

Obviously, then, a 22% permanent disability award was incorrect for the 1993 injury, because there was no diminution in Borman's ability to compete for a job since he maintained his job ... for many years, likely getting pay raises along the way.

The definition of permanent disability in California has changed over the years. Now it is supposed to be reflective of a loss of earning capacity. Under this theory, Borman should not have received any permanent disability indemnity for the 1993 injury because there obviously was no loss of earning capacity.

Okay - so we see the folderol of permanent disability. If we accept that it is simply fiction, that it is a concept that is not based on fact, but is simply society's way of placating one who encounters misfortune at the work place, then there should be no problem. Pay and move on.

But we don't accept permanent disability as simply fiction. We ascribe fact to this fiction. And thus, fact must become reality in the long term so one who gets a permanent disability award but successfully continues employed life after a work place incident is seen as dichotomous.

Back to the story - the 1st DCA, in an unpublished decision Tuesday, ordered the WCAB to return the case to a judge for additional proceedings on apportionment since the expert's unrebutted opinion was that the causative sources for Borman's hearing loss could be apportioned between industrial sources and nonindustrial sources.

In other words, substantial medical evidence was ignored at the trial level.

Compared and contrasted in the WCC article was another case that was taken to the California Supreme Court - and rejected.

In Pacific Compensation Insurance Co. v. WCAB (Nilsen), Gregory Nilsen had a significant documented history of treatment for his lumbar spine, degenerative joint disease, chronic pain and anxiety disorder before his industrial injury, but the WCJ reasoned that none of these conditions contributed to Nilsen's total loss-of-earning capacity after a February 2007 workplace accident.

The WCJ ruled that liability for Nilsen's permanent and total disability fell entirely upon Nilsen's employer and its carrier, the Pacific Compensation Insurance Co.

Pacific petitioned up the appellate chain to the Supreme Court without success.

The probable reason (we'll never really know since no appellate review resulted in an explanatory opinion) why there was no apportionment in Nielsen's case was because there wasn't any hard evidence of prior disability - like an earlier Findings and Award as in the Borman case.

The attorney for Nilsen explained to WCC how he distinguished the two cases: "You can have a preexisting disability and then have a new injury which in and of itself creates a total disability, notwithstanding that there was previous disability," he said, "but you have to be able to differentiate the cause of that total disability from the preexisting disability."

Evidence. It all comes down to the evidence, whether it is credible, believable, substantial.

And sometimes even that doesn't count.

In the end, apportionment remains incalculably frustrating for employers despite years of reform attempts to tighten the standards.


  1. There are some recent threads in this or perhaps some other related forums regarding pre-employment functional testing. I believe the documented evidence for the benefit of pre-employment functional testing is very clear, despite many of the comments; however, if there were only one reason for doing pre-employment functional testing A VERY VALUABLE reason would be to objectively identify current pre-hire musculoskeletal status or "baseline" data specifically to mitigate (apportion)potential future liability for pre-existing functional limitations. In other words, if you have specific objective measurments of an employee's pre-employment musculoskeletal status, you have the best available information to mitigate future objectively measured post-injury limitations or "disability." You can objectively compare post-injury data with pre-employment status and have resulting objective measurement of the difference or "what the injury caused." It does work, has worked, and will continue to work; but you have to have the pre-employment status and a procedure to get this information into the legal record. And there's only one way to get it...start with pre-employment functional evaluation WITH complete musculoskeletal evaluation and get your HR, risk, and legal team to set up proper procedures to make proper use of that data. Nothing impresses more than pure objective data. Example: "The claimant's pre-employment lumbar flexion range of motion (by inclinometry as required by AMA Guides) was 45 degrees. (60 degrees is considered normal). The claimant's post-injury MMI lumbar flexion was 30 degrees. The employer might be responsible for 15 degrees of lost lumbar flexion (25%) NOT 30 degrees (50%). That's a BIG difference in "disability" and cost savings!

    1. I don't agree Terry - I don't think that the PFT would a) be admissible for the purposes of proving apportionment, and if it was b) it would not be substantial evidence of pre-existing disability.