DISCLAIMER: The statements and opinions contained in this publication are those of the contributors only and are not necessarily those of The State Bar of California, the Workers' Compensation Section, or any government body. This information is intended to be a reference tool only and is not meant to be relied upon as legal advice.
By David M. Skaggs
I am honored to be appointed as the 2017-2018 chair of the California State Bar’s Workers’ Compensation Section’s Executive Committee, a committee of my peers representing a balance of judges and practitioners from the applicants’ and defense bars located throughout the state. Over the past five years, I have had the pleasure of serving on the Committee in various capacities, including most recently as its Treasurer and Secretary. I would be remiss not to begin by thanking our outgoing chair, Kenny Sheppard of Jones Clifford in San Francisco, for his inspired leadership of our Committee over 2016-2017, and our 2017-2018 Vice Chair, Maria Sager of Boxer Gerson in Oakland, for her continued and tireless commitment in service to the Committee, and each of the Committee’s individual members and advisors who generously donate their time to serve on it. I would also like to specifically recognize and thank attorney Lynn Peterson who has dutifully served as the editor of the Committee’s publication, the Workers’ Compensation Quarterly, for the past 30 years, and who will soon retire from the position at the end of this year.
It is an historic time for the State Bar and its sections as Governor Brown has signed SB 36 (Jackson) into law on October 2, 2017, which will effectively separate the State Bar’s trade association functions, i.e., its 16 sections and California Young Lawyers’ Association (CYLA), from its core, public protection functions, i.e., its licensing and regulatory duties. Your continued and valued support of the Committee is most appreciated during this time of its strategic transition, whereby it will emerge together with the other sections and CYLA as a stand-alone, non-profit entity. The executive committees of each of the various sections are made up entirely of volunteers, dedicated to the practice of law or to adjudicating legal disputes, and to advancing their section’s commitment to legal education, discourse and public outreach.
The purpose of the Workers’ Compensation Section’s Executive Committee is best demonstrated by identifying the Committee’s working groups, i.e., its subcommittees: Education, Practice & Ethics, Legislation, Awards & Recognition, Publications, Technology & Social Media, Membership & CYLA and Community Outreach. Each subcommittee meets on a regular basis throughout the year and is tasked with various action items that collectively serve to advance the overall Committee’s agenda of providing service to the legal profession, the legal system and the public.
Your membership in the Workers’ Compensation Section supports the Committee’s work and ensures that the Section will continue to drive strong educational and outreach programs and maintain for its members an effective, bipartisan voice on important matters concerning legislation, regulation and case law. I would like to take this opportunity to thank you for your continued membership in the Section and to encourage you to consider volunteering to join us in leading the Section through an appointment to the Executive Committee. I look forward to my time serving as the Committee’s chair and thank the Committee and the Section membership for the opportunity and honor to do so.
David M. Skaggs, Thousand Oaks/Westlake, CA
October 6, 13, 20, 2017
Are you taking the workers’ compensation specialization exam this year? Has it been awhile since you’ve taken a timed essay? Do you think IRAC is a foreign country? If so, this webinar is a must have for your exam preparation. Each week, a certified workers’ compensation specialist will cover four of the twelve essays contained in the examination preparation packet released by the specialization committee. The presenters will go over the essay question and present a model answer to the question. They will cover issue spotting for the essay exam as well as the basic substantive law behind each question.
A copy of the practice exam can be found by clicking here.
Week 1 (Oct. 6) will cover essays 1 through 4. Click Here
Week 2 (Oct. 13) will cover essays 5 through 8. Click Here
Week 3 (Oct. 20) will cover essays 9 through 12. Click Here
Attendees are encouraged to complete the essays on their own, under test conditions, prior to each webinar.
Speakers: Kenneth Sheppard, David Skaggs, and Yvonne Lang
Saturday, October 7, 2017
Renaissance Long Beach Hotel
111 E. Ocean Blvd.
Long Beach, CA 90802
6.0 hours of this program meets the specialization requirement of “mechanics of rating permanent disability requirement” for the certified workers’ compensation specialty
In-Person Registration Link
Schedule | Essential Info | Printable Brochure | Mail / Fax Registration Form
Click here for all the details!
Saturday, November 18, 2017
Hyatt Regency LAX
6225 W. Century Blvd.
Los Angeles, CA 90045
Earn 6 Hours of MCLE Credit
You can now REGISTER ONLINE to attend in-person. Online registration will close after Friday, November 10, 2017.
Click here to get all the details!
By Michael J. Brady, Fresno, California and Trevor Simonson, Fresno, California
Please note that this article is meant to provide the general basics of apportionment and how it is applied today. Apportionment is “inextricably intertwined” to most issues in most California Workers’ Compensation cases and to delve into every aspect would require hundreds of pages of content. Thus, please consider this article your basic refresher, or starting point, to furthering your knowledge of apportionment in California Workers’ Compensation law.
What is Apportionment?
California Labor Code Section 4663(c) clarifies apportionment by asserting:
In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. 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. (Emphasis added.)
Furthermore, California Labor Section 4664(a) states: “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.”
In short, apportionment is a physician deciding within “reasonable medical probability” what part or portions of the applicant’s injury are due to the industrial injury and which are due to factors that have nothing to do with the work injury. Some of the factors considered for apportionment to non-work injury include pre-existing conditions, hereditary issues, degeneration, and prior injuries.
The evaluating physician’s responsibility is to provide the amount of whole person impairment caused by the industrial injury. The evaluating physician does not need to make a determination of what whole person impairment would be or should have been if the non-work factors never existed. This means the evaluating physician will evaluate the applicant as they are following the work injury rather than focus on hypothetical situations where the applicant sustained different or less severe injuries.
Why do Defendants want Apportionment?
How do Defendants Keep Apportionment?
Application of Escobedo Decision
In Escobedo v. Marshalls (2005) 70 CCC 604 (en banc), the appeals board found that the applicant continues to have the primary burden of establishing an industrial injury. The applicant must prove by a preponderance of the evidence the overall level of permanent disability and that a portion of the permanent disability was industrially caused.
With the adoption of Labor Code sections 4663 and 4664(a) following SB 899, the legislature expanded the scope of legally permissible apportionment. That being the case, the employer must prove that non-industrial factors are attributable to the permanent disability provided for the industrial injury. Since the employer is the beneficiary of apportionment to non-industrial factors, they have the burden of proving “by substantial medical evidence” the validity of the apportionment provided. (Escobedo at 613-614).
As referenced in the preceding section, Labor Code Section 4663 specifies that a physician’s report must not only discuss apportionment but also provide approximate percentages of permanent disability caused by the industrial injury as well as outside factors. Labor Code Section 4663(c) further provides that if the physician cannot make a determination regarding apportionment, they are to provide specific reasons why they are unable to do so. They must then consult with outside physicians or refer the applicant to another physician so a determination regarding apportionment can be made.
A physician evaluating the applicant is not the lone arbiter in determining the amount of apportionment provided to the applicant. Both the appeals board and the reporting physician(s) are to make decisions regarding the applicable percentage of permanent disability caused by the industrial injury and the percentage caused by non-industrial factors. (Escobedo at 607)
A substantial report must have:
What happens if the applicant has an asymptomatic pre-existing non-industrial condition(s)?
In E.L. Yeager Construction v. WCAB (Gatten) (2006) 71 CCC 1687, 1692) the appeals board found that the applicant’s nearly asymptomatic degenerative disc disease prior to an industrial injury could still provide a basis for apportionment. This holding was further solidified by the holding in Brodie v. WCAB, (2007) 40 Cal.4th 1313), wherein the California Supreme Court found that "[t]he plain language of new section 4663 and 4664 demonstrates they were intended to reverse these features of former sections 4663 and 4750" and that the adoption of these sections "eliminate the bar against apportionment based on pathology and asymptomatic causes.” (Brodie at 1327)
** Please see our recent E-Flash article on the decision in the Rice case for additional information in this area. It can be found on our website: <http://www.lflm.com/wp-content/uploads/2017/04/04272017-CityOfJacksonVRice-Genetic-Disposition.pdf >
What we hope you take away from this article is an introduction, or refresher to apportionment and the importance of keeping apportionment when it is available. When defendants obtain substantial amounts of apportionment to non-industrial factors, be prepared for a challenge from applicant’s attorney. That being said, keep the following in mind:
© Copyright 2017 by Michael J. Brady and Trevor Simonson. All rights reserved. Reprinted with permission. Michael J. Brady and Trevor Simonson are Associate Attorneys in the Fresno office of Laughlin, Falbo, Levy & Moresi, LLP. They represent insurance carriers, third-party administrators, and self-insured employers in all areas of state workers’ compensation law.
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