APPORTIONMENT — 2006

CSIMS Mid-Summer Seminar

Nachman Brautbar, M.D.

June 9-11, 2006

Lake Tahoe, California

SB 899

Apportionment

Labor Code Section 4663

Apportionment: Permanent Disability

Apportionment: Permanent Disability and Causation

Apportionment: Legal Cases

Lessons from Escobedo

Substantial Medical Evidence

Legal Principles of Determining What Constitutes Substantial Medical Evidence

Taken from: Penny Jean Aguilar v. Breidenbach, Buckley, Huchting & Hamblet/Superior National/CIGA. Case No. MON 0246279. Opinion and order granting reconsideration. February 21, 2006

Penny Jean Aguilar v. Breidenbach et al. Case No. MON 0246279. February 21, 2006

Penny Jean Aguilar v. Breidenbach et al. Case No. MON 0246279. February 21, 2006

[This is what they said in Escobedo.]

Apportionment to Causation of What?

This could be transferred to a medical context:

Aggravation of Illness/Injury

Wood v. State Compensation Insurance Fund. SAL, 91110. Oct. 2005

Parreira v. F & A Farms; State Compensation Insurance Fund. STK 0180210. Jun. 2005

  1. This was a prostate case. It was determined that the injury was industrial. Minimal disability, apportionment 98% to non-industrial etiology (evaluating doctor). This was based on belief, because the medical records and the doctors own report stated that the applicant was in good health, prior to the injury.
  2. In this case, the Board stated that the record contains no evidence of any prior prostate problem, and that applicant's testimony was credible.

Fred Steinkamp v. City of Concord. OAK 0316754, Panel Decision. Mar. 2006

  1. In this case, the issue was recurrent injuries to the right knee, specific injury which required surgery, which did not cure the disability.
  2. The AME doctor, based on pathology (ligament tear, the mechanisms of the January 1995, would be inconsistent with such a tear, and therefore this tear preexisted the injury of 1995), apportioned the permanent disability arising out this 1995 injury.
  3. The Board stated that the mere fact that a physicians report addressed the issue of causation of permanent disability "does not necessarily render the report substantial evidence. Rather, the report must, in part, disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionment disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability (i.e. the report must explain how the "other factors" caused permanent disability). (Escobedo v. Marshalls, supra, 70 Cal.Comp.Cases 604.) (Emphasis added.)
  4. "Here, we conclude that there is not basis for apportionment of applicant's permanent knee disability. Dr. Isono reported that applicant's need for right knee replacement surgery was caused by various factors, including industrial and non-industrial factors. However, medical treatment is not apportionable. (Granado v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 399 [33 Cal.Comp.Cases 647].) Moreover, despite the various causes for the knee replacement surgery, applicant's work limitation to semi-sedentary work, according to Dr. Isono, is due to the knee replacement and the symptoms related to the prosthesis." (Emphasis added.)
  5. "Thus, while we held in Escobedo v. Marshalls, supra, that apportionment of permanent disability under section 4663(a) may be based on any "other factor", here there are no "other factors" that caused permanent knee disability. Rather, the permanent knee disability was caused by the knee replacement and the symptoms associated with the prosthetic knee replacement (that were admitted to be industrial). Therefore, under section 4663 and Escobedo v. Marshalls, supra, we conclude that there can be no apportionment of applicant's permanent knee disability in these matters." (Emphasis added.)

What About Risk Factors?

  1. Obesity, family history, cigarette smoking, alcohol? All these must be discussed when applicable (type of injury) for causation of injury/illness.
  2. For apportionment to causation, all should be discussed, but must follow the Litmus test of substantial evidence. Exactly as Escobedo, Wood, Sherman, and Steinkamp are teaching us.

Apportionment to Obesity: Penny Jean Aguilar v. Breidenbach et al. Case No. MON 0246279. February 21, 2006

Penny Jean Aguilar v. Breidenbach et al. Case No. MON 0246279. February 21, 2006

Teaches again:

  1. Reasoning,
  2. that reaches substantial medical evidence;
  3. and the Litmus test is that of substantial medical evidence.

Heart Attack, Obesity and Smoking

  1. We will assume a hypothetical case: 50-year old male; height: 5'11"; weight: 250 lb.; cigarette smoke history: 1 pack a day x 25 years.
  2. Works as a laborer for the last 20 years, heavy physical work.
  3. No medical records, no history of chest pain, no history of self-imposed restrictions.
  4. Date of injury: asked to help move a 500-lb. Object with 2 other workers. While doing this for 30 minutes, develops chest pain and collapses. Emergency room hospital, acute MI.
  5. For the purposes of this case, released back to work 4 months later with 40% PD.
  6. AME examines, deposition of applicant credible, records: nothing prior to the acute MI.
  7. AME describes causation as industrial, and states that obesity, smoking cigarettes and family history were risk factors in causation, and the heavy lifting event triggered (lit up) the heart attack (acute MI).
  8. Absent medical records, specific events with this patient, can the AME apportion to risk factors?
  9. Unless the AME can provide studies, relevant to this patient, and explain how these risk factors caused disability absent the event of heavy lifting, apportionment will not follow Escobedo, Sherman, Wood, and Steinkamp.


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