Recent Trends an “Inextricably Intertwined’ Universe

Oftentimes we see applicants who sustain a specific injury but continue to work thereafter and simultaneously developed a cumulative trauma injury. When evaluating an applicant, the California Labor Code specifically requires a physician to determine what percentage of disability was caused by each industrial injury. This is consistent with the new system of apportionment under SB 899 and the enactment of Labor Code section 4663 and section 4664 which is based on causation. This means that each distinct industrial injury must be separately compensated based on its individual contribution to permanent disability.

However, the Court of Appeal in Benson vs. WCAB recognized that there may be rare circumstances “when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentage as to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such limited circumstances, when the employer has failed to meet his burden of proof, a combined award of permanent disability may still be justified.” This often results in higher awards of permanent disability because everything is combined and in some cases, is the determining factor in a life pension case.

Even though the court explained that this was only permissible “in limited circumstances” in practice, this was becoming the norm. It was all too common for a physician to state in a conclusory fashion that he or she was unable to parcel out disability because the injuries were “inextricably intertwined.” As a matter of fact, the term “inextricably intertwined” was never mentioned in Benson. Nevertheless, in practice this doctrine took on a meaning on its own. Doctors were becoming dilatory and complacent with their medical reports in exchange for a plausible analysis and explanation because it can be daunting in certain cases. Consider for example, a football player who, throughout the course of his career, sustained multiple specific injuries and simultaneous cumulative trauma.

Recently, we have begun to see a trend in courts challenging the medical reports of doctors who adhere to the norm. However, the cases that have come down have not been revolutionary but simply bring us back to the basics. A doctor’s medical report must be based on “substantial medical evidence”.  In Escobedo vs. Marshalls, the court set forth five components of an apportionment determination that can be used as a checklist to ensure a doctor’s report is bullet proof on the issue. Included in that list is the following:

  1. The doctor must make a specific apportionment determination, using percentages, based on the permanent disability that existed at “the time of his (or her) evaluation of applicant.”
  2. The doctor must analyze permanent disability based on causation of disability (rather than causation of injury);
  3. The doctor’s opinion “must not be speculative, it must be based on pertinent facts and on an adequate examination and history;”
  4. The doctor’s opinion must be based on “reasonable medical probability;”
  5. The doctor must explain how and why he or she arrived at his conclusion.

Therefore, it is important that a physician expound specific reasons as to why he/she is unable to apportion and the reason must be plausible. Other lessons learned from recent cases such as Guritzky v. Regents of the University of California is that if other physicians on the case are able to apportion, to be substantial medical evidence, the physician who is unable to apportion should, at the very least provide commentary on why he or she disagrees with the other physicians. It is also helpful to look for inconsistency in the doctor’s medical reports and depositions and have these matters addressed head on, as stated in Cruz v California Hospital Medical Center.

Since it is the defendant’s burden of proof on apportionment, a defendant cannot take a passive approach. If the physician’s initial apportionment opinion does not satisfy the defendant’s burden of proof, then the defendant must take further affirmative steps to carry its burden, e.g., through cross-examination of and/or by a supplemental report of the physician.

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