Apportionment Under LC S 4663, Basic Policy Considerations
The standard of apportionment has been amended to state only that "Apportionment
of permanent disability shall be based on causation."
The method for determining apportionment is stated as follows:
"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."
If the physician is unable to make that determination, "the physician shall
state the specific reasons why the physician could not make a determination of
the effect of that prior condition on the permanent disability arising from the
injury."
The reason for this determination is so that "The employer shall only be liable
for the percentage of the permanent disability directly caused by the injury
arising out of and occurring in the course of the employment."
The courts will have to address the issue of the meaning of the sentence
"Apportionment of permanent disability shall be based on causation." By revising
LC 4663 and deleting LC 4750, the legislature has created an ambiguity. The
language of the earlier statutes was more specific in their definition of
"apportionment" than is the simple phrases "based on causation"and "caused by
other factors." A great deal of case law has further clarified the meaning of
those earlier statutes and the public policy underlying them.
The purpose of the revised and deleted statutes (4663 and 4750, respectively)
had been stated to be that [the WCAB]" is not authorized, in computing the
percentage of permanent disability of an employee caused by an industrial
injury, to include any percentage of such disability attributable to a prior
industrial or nonindustrial disease or injury; nor is it justified in including
in an award any amount as compensation for the disability attributable solely to
the prior injury or disease and for which the employment was in no wise
responsible." (SCIF vs IAC (Quick) 56 Cal 2nd 681, 684; 26 CCC 200)
Here is a quote from State Senator Chuck Poochigian, the author of the bill,
shortly after it passed. "Under the new law employers will not be held liable
for disability payments arising from pre-existing illnesses, or conditions and
injuries unrelated to their employment. Permanent disability payments will be
apportioned so that the employers pay for the percentage of disability caused by
injuries occurring in the workplace."(page 6, Los Angeles Daily Journal May 4,
2004.)
It is hard to imagine just what the legislature had in mind when they decided to
change these statutes to the new language. There is an argument that they either
misunderstood the way the law was applied or believed that the courts had gotten
away from the interpretation of LC 4663 and 4750 expressed in Quick and they
merely intended to re-emphasize that apportionment should be viewed as indicated
by the Supreme Court in that case. However, assuming that they intended a
different approach to the issue, we will continue this analysis.
Another basic policy of the state, which had been stated to be the purpose of
the now deleted section 4750, has been "to encourage the employment of
physically disabled persons by assuring an employer that he will not be liable
for the total combined disability present after an industrial injury, but only
for that portion which is attributable to the subsequent industrial injury."
(Multiple citations) (Franklin vs WCAB, 43 CCC 310) The fact of the deletion of
that section raises the question whether the legislature could have intended to
remove that policy from the workers' compensation scheme, or merely to restate
it as " 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."(new 4664(a)) One would assume that now, even more than
before, the policy remains to encourage the employment of the disabled, as
required by both state and federal law.
"In resolving the issue of apportionment, the Board must rely on expert medical
opinion. An expert's opinion, however, which does not rest upon relevant facts
or which assumes an incorrect legal theory cannot constitute substantial medical
evidence upon which the Board may base an apportionment finding." (Zemke vs
W.C.A.B., 68 Cal 2nd 794, 33 CCC 358). There is no reason for this standard to
change. The big question is "What is the correct legal theory?"
"Legal apportionment is not identical to theories of medical causation.
Physicians in workers' compensation matters must accordingly be educated by the
parties on the correct legal standards of apportionment." (Gay v WCAB, 44 CCC
817) Again we ask "What is the correct legal standard?"
Before the 2004 amendment, "[t]he underlying theory [of apportionment was]...
that the employer takes the employee subject to his condition when he enters the
employment, and that therefore compensation is not to be denied merely because
the workman's physical condition was such as to cause him to suffer a disability
from an injury which ordinarily, given a stronger and healthier constitution,
would have caused little or no inconvenience."[Tanenbaum vs I.A.C. 4 Cal 2nd
615) This is the corollary to the doctrine in tort referred to as the "eggshell
plaintiff" or sometimes stated as "A tort-feasor takes his victim as he finds
him." A key question in the analysis of the amended statute is whether the
policy of the State of California will continue to remain the same in this
regard.
I propose that these basic policies do remain the same and that the amended code
section can be reasonably interpreted to preserve this "underlying theory." The
injured worker can not be held to a more restrictive standard of causation than
the injured tort victim.
I will use an example based on my understanding of two types of strokes. In the
"ischemic" stroke, plaque builds up over time in the blood vessels in the brain.
This plaque, we will imagine, is caused by (non-industrial) genetic factors,
(non-industrial) diet, (non-industrial or industrial) limited exercise, and (for
purposes of argument, industrial) stress. Eventually, the plaque occludes a
vessel to the point where it cannot deliver enough blood to a portion of the
brain and there is injury and disability. These forces (or "factors") work over
time in conjunction with each other. They may not create any observable or
easily verifiable disability prior to the injury, but they are reasonably
medically known contributing causes of the ischemic condition which is the cause
of the injury.
In the "hemorrhagic" stroke a vessel bursts, rather than closes off. For
purposes of this example, the vessel weakens over time because of(non-industrial)
genetic factors and (non-industrial) aging, but it bursts when it does because
of an industrial stressful event, causing injury and disability.. In an
alternate scenario the vessel bursts from a non-industrial stressful event.
Prior to the event there is no disability.
I propose that this demonstrates two types of "causative factors." The later
example, the hemorrhagic stroke, is preceded in time by what I would call
"passive causative factors." They could exist forever without necessarily
causing an injury or disability or they could be triggered, or "lit up" by a
completely non-industrial event, in which case there would be no industrial
injury or disability. I submit that there should not be apportionment to
"passive causative factors" which provide only the stage upon which the
industrial event occurs, the pile of boxes which the industrial accident topples
onto the victim.
However, in the former example, the "ischemic" event, (continuous trauma) there
are "active causative factors"some of which are industrial and some of which are
non-industrial, which work together to slowly create the injury itself. I
propose that apportionment to these active causative factors, by describing an
"approximate percentage of the permanent disability which was caused by" these
"other factors" would result in a change in the determination of apportionment
that is compatible with the other basic policies underlying the workers'
compensation scheme.
How does this differ from the previous apportionment rules under LC4663? The
earlier statute, as interpreted by the courts, required the following:
1. That there be a pre-existing "progressive disease process."
2. Medical evidence that the "disease condition" would have become disabling
even absent the industrial injury.
3. Medical evidence that the "disease process" would have become disabling at a
definite ascertainable time.
4. Legally sufficient and reasonably medically probable evidence of all the
above.
These conditions made it difficult for the employer to prove the nature of the
non-industrial portion of the disability. Under the new rule, all that would be
required is for the employer to prove that there were active non-industrial
factors which caused an "approximate percentage" of the permanent disability. I
believe that the doctor would still have to show that his "approximation" was
based on "reasonably probable medical evidence," but the standard for "factors"
is not as limiting as the "disease process" and the "definite ascertainable
time" standard.
This approach avoids the patently unfair result that would result from applying
a strictly "medical causation" standard to the apportionment question. It has
been argued that the court should read the statute as intending to apply to all
"causative factors" including those that I have defined as "passive causative
factors." This interpretation would require a finding that the legislature
intended to bring to an end of the basic policy that the employer takes the
worker as he finds him.
If a worker could be compared to another worker who was not or might not have
been injured in the same incident, one could always find someone stronger or
more fit who might not have been injured in the same circumstance. It could
always be argued then that the workers own weakness, whether genetic or caused
by his life-style choices or failure to maintain appropriate physical
conditioning, was a "factor" to which some permanent disability should be
apportioned. This would introduce "fault" into the system.
If a "retro-active prophylactic work restriction" could be apportioned away, it
would be possible to retroactively conclude that a worker should have been
precluded from the activity he was performing at the time of the injury, since
it is clear that such an activity would have caused him to be injured.
It is respectfully submitted that this analysis of "causation" delineating
"passive" and "active" causative factors, assumes a correct legal basis and
provides a framework for a correct legal theory of apportionment, based on the
amendments of 2004.
Robert S. Havens, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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