Medical Expert Witness Forensic Toxicologist | Medical Expert Witness Services & More | Dr. Nachman Brautbar

APPORTIONMENT — 2006

CSIMS Mid-Summer Seminar

Nachman Brautbar, M.D.

June 9-11, 2006

Lake Tahoe, California

SB 899

  • SB 899 causes much confusion in the legal and medical community.
  • Addressing apportionment:
    • This presentation is based on information available to the date of writing these points (April 2006); as we speak there may be another case decided by the court on apportionment.
    • Everything is possible as of SB 899.

Apportionment

  • As of 4/19/2004, Sections 4663 and LC 4664 have been repealed. These changes are in regards to apportionment.
  • While apportionment of liability is a well accepted doctrine in civil law, medical apportionment in workers' compensation as of 4/19/2004 intended to share liability for medical disability to prior injuries, prior awards, prior disability and pathology.

Labor Code Section 4663

  • Labor Code Section 4663 specifically requires apportionment to causation:
    1. Apportionment of permanent disability shall be based on causation.
    2. The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. The physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. Any physician who prepares a report addressing the issue of permanent disability due to claimed industrial injury shall in that report address the issue of causation of the permanent disability.

Apportionment: Permanent Disability

  • Note that apportionment is of permanent disability!
  • The process of apportionment must include discussion on all factors:
    1. Causation;
    2. Other factors (Risk factors? Genetics? Racial? Pathology? Natural progression of disease process? Age?);
    3. Prior industrial injuries;
    4. Prior disabilities;
    5. Prior awards.

Apportionment: Permanent Disability and Causation

  • Yet, the letter of the law says, "issue of causation of permanent disability."
  • This is the key in understanding apportionment to causation. It is not the disease process/injury that is to be apportioned, but the causation of permanent disability.
  • In other words, an industrial injury can be and commonly is a chain of factors.

Apportionment: Legal Cases

  • Several key case laws and court decision in regards to apportionment to causation are relied on.
  • The pivotal case is that of Escobedo v. Marshalls and CNA Insurance Co. (2005, 70 CCC 604, Appeals Board en banc; 70 CCC 1506, writ denied)

Lessons from Escobedo

  • LC 4663 language did not limit "other factors," and therefore other factors may include pathology, asymptomatic prior conditions and retroactive work preclusion, provided there is substantial medical evidence.
  • The basis for the Escobedo court to apportion to pathology was based on the report of Dr. Ovadia who used the key words of, "it is medically probable that she would have fifty percent of the current level of knee disability at the time of today's evaluation even in the absence of her employment at Marshals."
  • So the key here was the court's opinion that Dr. Ovadia's apportionment was substantial medical evidence.
  • Escobedo 2005 also made the law that in every apportionment discussion, the Litmus is: did this apportionment discussion in this report rise to substantial medical evidence?

Substantial Medical Evidence

  • What is substantial medical evidence?
  • Based on Escobedo:
    1. Reasonable medical probability;
    2. Not be speculative;
    3. Based on pertinent facts;
    4. Based on adequate examination and history;
    5. Reasoning in support of the conclusion.
  • The fact that a doctor writes a report and states that apportionment is based on reasonable medical probability is not sufficient.
  • Indeed the Escobedo court stated that, "the opinion of an expert is no better than the reasons upon which it is based."

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

  • "In this regard, it has been long established that, in order to constitute substantial medical evidence, a medical opinion must be predicated on reasonable medical probability."

    (McCallister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413, 416-417, 419 [445 P.2d 313, 71 Cal. Rptr. 697] [33 Cal.Comp. Cases 660]; Travelers Ins. Co. v. Industrial Acc. Com. (Odello) (1949) 33 Cal.2d 685, 687-688 [203 P.2d 747] [14 Cal.Comp.Cases 54]; Rosas v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700-1702, 1705 [20 Cal. Rptr. 2d 778] [58 Cal.Comp.Cases 313])

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

  • "Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess."

    (Hegglin v. Workmen's Comp. Appeals Bd (1971) 4 Cal.3d 162, 169. [480 P.2d 967, 93 Cal. Rptr15] [36 Cal.Comp.Cases 93]; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378-379 [475 P.2d 656, 90 Cal. Rptr. 424] [35 Cal.Comp.Cases 525]; Zemke v. Workmen's Comp. Appeals Bd., supra, 68 Cal.2d at p. 798.)

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

  • "Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions."

    (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal.2d 399, 407 [445 P.2d 294, 71 Cal.Rptr. 678] (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd., Supra, 68 Cal.2d at pp. 799, 800-801 (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial medical evidence); see also People v. Bassett (1968) 69 Cal.2d 122, 141, 144 [443 P.2d 777, 70 Cal. Rptr. 193] (the chief value of an expert's testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based).)
  • "Moreover, in the context of apportionment determinations, the medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so that the Board can determine whether the physician is properly apportioning under the correct legal principles."

    (Ashley v. Workers' Comp. Appeals Bd., supra, 37 Cal.App.4th at pp. 326-327; King v. Workers' Comp. Appeals Bd., supra, 231 Cal.App.3d at pp. 1646-1647; Ditler v. Workers' Comp. Appeals Bd., supra, 131 Cal.App.3d at pp. 812-813.)
  • "Thus, to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions."

[This is what they said in Escobedo.]

  • "For example, if a physician opines that approximately 50% of an employee's back disability is directly caused by the industrial injury, the physician must explain how and why the disability is causally related to the industrial injury (e.g., the industrial injury resulted in surgery which caused vulnerability that necessitates certain restrictions) and how and why the injury is responsible for approximately 50% of the disability."
  • "And, if a physician opines that 50% of an employee's back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability."

    (Escodedo, supra, 70 Cal.Comp.Cases at pp. 620-621.)

Apportionment to Causation of What?

  • This is where many reports I have seen confuse causation of injury/disease, and causation of permanent disability.
  • In Reyes v. Hart Plastering (2005, Significant Panel Decision, 70 Cal. Com. Cases 223), the panel teaches us that the percentage to which an applicants injury in causation was related to his/her employment is not necessarily the same as percentage to which an applicant's permanent disability is causally related to his or her injury.
  • The analysis of causation of injury/illness is not the same as causation of permanent disability.

This could be transferred to a medical context:

  • An applicant has a heart attach and he has various risk factors including a positive family history, hypertension, high cholesterol, sedentary lifestyle, and stress at work.
  • If the work stress caused, aggravated or accelerated the heart attach, he sustained an industrial injury.
  • At that point, if his disability resulted from the damage to his heart at the time he suffered the heart attack and if the heart attack was industrial, there may not be any basis for apportionment to any of the nonindustrial factors.

Aggravation of Illness/Injury

  • Sherman v. LAUSD (BPD), 33 CWCR 300, panel decision, regarding rheumatoid arthritis aggravated by industrial injuries:
    1. In this case, the AME concluded that trauma "lit up" the rheumatoid arthritis.
    2. The AME stated that prior to the industrial injury (musculoskeletal system), the applicant was healthy. No apportionment of 98% PD.
    3. Defendants filed for reconsideration.
    4. Board opined: based on the AME found "lit up," which is the proximate cause.
    5. Based on the AME report, the applicant had no pre-existing illness recognized as rheumatoid arthritis, and no disability to joints before the employment trauma, and therefore not subject for apportionment.

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

  • In this case, the panel examined apportionment of a doctor, AME. The doctor apportioned 50% to non-industrial and 50% industrial.
    1. AME stated, "In this case, we have a specific work injury and no evidence whatsoever of prior disability. On the other hand, his lumbar pathology (emphasis added) contrarily predated the industrial injury. Absent the underlying pathology, he would be better off today or to put it in another way, his underlying pathology has contributed to his disability."
    2. The panel in a 2:1 decision denied apportionment based on lack of explanation for the statement that application would be "better off today."
    3. To be substantial medical evidence, expert medical evidence must explain how and why the underlying pathology is causing disability.
    4. Commissioners O'Brien and Rabine (2 out of the 3) indicated that to support apportionment under Escobedo, the AME would have been required to say how and why.

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.
    • Again, as we see in Sherman and in Wood, the mere "belief" or retroactive surmises, in the absence of any substantial evidence (testimony, records, medical records, testing) apportionment to "pathology" and etiology can not pass the Litmus test.

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

  • In this case, the defense doctor apportioned a percentage of orthopedic disability to obesity.
  • "Given the fact that apparently her weight loss program was granted to her based upon orthopedic injury and that this was affecting her orthopedic injury, we can now indicate that there was a reasonable basis to apportion to that obesity as well. Unfortunately, although she has undergone an attempt at the 'weight loss program' for a sensible period of time it has not been very effective for her and she really has lost no significant weight."
  • "Based upon the above and the apportionment for medical causation to include underlying obesity, which of course puts weight across her ankles and stresses her feet and ankles when she stands and walks, we cannot apportion disability to that. One would, therefore, have to reasonably believe that there would be a basis to apportion this."
  • "I would now indicate that I would apportion 33 percent of her disability regarding her lower extremities to her obesity which would be limiting her standing and walking and other physical activities as well. Therefore, we could apportion the remaining 67 percent of her disability to the industrial injury as claimed."
  • "Dr. Sanders's opinion is based on an incorrect legal theory. He states that the new law authorizes apportionment to obesity — a view that is not entirely correct. While obesity can affect or potentially cause certain medical conditions and, thereby, contribute to disability in some individuals, apportionment of permanent disability, in and of itself, is not justified."
  • It cannot be assumed that, because a person is obese, he or she is disabled. Dr. Sanders's report on apportionment does not provide sound reasoning in support of its conclusion and is, in part, incomprehensible. In addition, it does not explain how and why applicant's obesity is causing permanent disability and how and why it is responsible for approximately 33 percent of the disability."
  • Dr. Sanders states that he "would apportion 33 percent of her disability regarding her lower extremities to her obesity which would be limiting her standing and walking and other physical activities as well." We find nothing in his report regarding how applicant's weight actually does limit her standing, walking, and other physical activities, or why it would, had she not been industrially injured. Dr. Sanders's statement that applicant's obesity "would be limiting" her activities appears entirely speculative."
  • "We reach the conclusion that the WCJ's apportionment determination is not supported by substantial evidence without considering the factual question raised by applicant of whether her obesity did, in fact, pre-exist the injury, and without considering the "medical evidence" presented for the first time in applicant's petition. Furthermore, at page 3 of the Report, the WCJ's states that applicant was "not credible that she was as active as claimed, given her long standing documented weight problem." This statement appears to be based on prejudice, not on reason or fact. While some individuals might have to limit their activity due to obesity, the uncontradicted and unimpeached evidence in this case is that applicant was physically active before her injure."

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.
  • In other words, what SB 899 has done, has raised the Litmus test for apportionment. While in the past, an AME could apportion based on "dividing the baby," based on the cases above, just picking up in a number without substantial support will not reach the Litmus test of substantial medical evidence.
  • If on the other hand, this same hypothetical had records of history of preexisting chest tightness related to physical activity documented in the medical records, in this case apportionment is based on substantial medical evidence (documented chest pain with physical activity prior to the specific event).
  • For purposes of apportionment in this case, the AME can rely on the AMA 5th Guide, Table 3-6a, and apportion to 10% non-industrial.
  • If the records will support preexisting angina, requiring self-imposed restrictions (because of angina), apportionment can reach 29% of whole person impairment. [AMA 5th Guide]
  • There's a very fine line between apportioning the injury and apportioning the disability. It may be that the sole cause of his disability is the damage done by his industrial heart attack.


Dr. Brautbar is a board-certified internist and nephrologist, and certified in forensic medicine. If you are interested in retaining Dr. Brautbar for forensic and expert witness testimony services, please submit the Contact Form.


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