inextricably intertwined pre and post 2013 injuries (Califor

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inextricably intertwined pre and post 2013 injuries (Califor

Postby cdixon on Thu Dec 10, 2020 10:08 am

I have a case with a 2012 specific injury (pre-2013) and a CT to 2014 (post-2013). The AMEs say the injuries are inextricably intertwined. The applicant has admitted psych and sleep injuries. Does the applicant get increased impairment for psych and sleep just because there is a 2012 date of injury? Of course as a defense attorney, I don't agree as I would think the 2014 date of injury controls as being the latter date of injury, but AA argues that they do. Thoughts?
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby LawAdvocate on Fri Dec 11, 2020 1:01 pm

Yes, the Applicant get sleep and psyche impairments if any of the resulting disability is related to the 2012 date of injury. If the 2012 and 2014 sleep and psyche impairments are inextricably intertwined, the Applicant gets that level of disability as the judge has nothing to rely on to do otherwise.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby vampireinthenight on Fri Jan 08, 2021 2:29 pm

Your AMEs hosed you. They are basically saying apportionment is speculative. Your argument is not going to work. You have to insist that they provide an apportionment decision which they apparently do not want to do. Have you deposed them yet? Those are the kind of AMEs you stay away from as a defendant.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby jpod on Fri Jan 08, 2021 2:49 pm

What I have always wondered is if the doctor can't separate the two injuries how does the doctor know there are two injuries rather one?

Under 5412 the DOI is the date the EE first suffered disability not the last so if the injuries are so intertwined how can the doctor find a CT after the first date of disability? It seems what is good for the goose is good for the gander. If the doctor found TTD on the CT how is it the doctor can't separate the PPD. It also seems to run afoul of the anti-merger doctrine to throw up one's hand and claim the two injuries are intertwined. I haven't been over seeing claim litigation for a while so I have never had the chance to try this argument. Maybe others have and if so..."never mind...".
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby vampireinthenight on Thu Jan 21, 2021 1:34 pm

Howdy jpod, how goes it? I would say the vast majority of CT claims have incorrect dates assigned to them and we sort of "roll with it" since it usually doesn't matter (until it does :lol: ).

You are absolutely right about anti-merger. "Inextricably intertwined" is a complete fiction invented by the WCAB to give doctors flexibility to issue awards. There is no basis for the concept anywhere in the Labor Code. In fact, it contradicts many sections, one of which you pointed out.

You will also notice 4663 says nothing about apportionment of PD being defendants burden of proof. Yet, the WCAB has declared it so. This enables them to basically skirt the Applicants clear burden to prove industrial disability and shift it all back to defendants to disprove industrial causation. And if the defendant agrees to the wrong AME who uses the magic words---> Unapportioned Awards. Pretty neat moves.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby LawAdvocate on Mon Jan 25, 2021 2:08 pm

Apportionment is addressed in Labor Code Section 4664 a and b. It is the defendant's burden of proof because it says:

"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 simple basic law, once Applicant asserts there is a level of permanent disability with substantial evidence, the employer/defendant than has the burden of proof to evidence what portion arose out of the injury.

This was further clarified in the Kopping case which said:

(1) Defendant must first prove that a prior award to the same body part exists, AND (2) Defendant must also prove that there is “overlap” of permanent disability between the initial and subsequent injury.

It didn't have to be stated in LC 4663.

As to how does a physician know there are two separate injuries? They follow the evidence. A specific trauma is pretty much a straight fact pattern, so having two specific injuries to the same body part is not difficult for most physicians to comprehend. As to finding a later CT, it is again a matter of following the evidence of the symptomology and the complaints. It isn't that tough to do. The disability can easily be inextricably intertwined when you can't use a reasonable basis to split it. IF you have straight objectives, it becomes easier but for the most part scientifically splitting the disability is difficult, and in an effort to avoid speculation, when a physician cannot describe the "how and why" of their apportionment opinions, it is more often than not intertwined.

It is rare to see valid apportionment in a medical report, yet many applicant attorneys let this slide. If you can't "prove" it - through the defendant's burden, you shouldn't be in the workers' compensation defense business. You can trace symptomology and the appearance of complaints just as well as any physician. You can propose evidence backed positions in cross-examinations.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby jpod on Fri Jan 29, 2021 11:00 am

But, but, but what about Western Growers? :-)

Just b/c there are broken periods of TTD it does not follow their is a new CT.

Again if the doctor can claim to identify there was a new and distinct injury it would follow that the new injury is not inexplicitly intertwined with another. It is just a fiction to do an end around new law that legislated WIlkenson out of WC.

The hidden impact of trying to maximize a PD award is there is a huge disservice being done to the applicant.

An employee can not receive more than 100% PD for the same body part in a work life time. Hence, it is really short sighted, to trump up PD on a lesser injuries because it artificially eats up a limited asset each worker possesses. It is a huge disservice to the injured worker that there isn't some sort of disclosure/informed consent required that explains to the applicant the ramifications of using up that limited asset.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby LawAdvocate on Mon Feb 08, 2021 4:27 pm

No one said there was new CT due to broken periods of TTD.

If there is a new injury, it may in fact actually be inextricably intertwined because the physician would have to explain what level of disability presented when without speculation. In some situations it is impossible to do so. It is not fiction, because it is based on the best medical analysis possible.

Maximizing the PD award? That is an insult to applicant attorneys everywhere and really should be drummed out of any discussion of workers' compensation . Do you not recall the State Bar mandate? You are required to vigorously represent your client which means, you make sure the PD award reflects their entitlement for that injury. You don't know if that injured worker will be injured again, how or when would the injured worker be compensated for the full amount of the PD?

There is no disservice as the injured worker should be compensated for each individual injury as it appears. There is no "limited asset". If the injured worker eventually injures themselves you file a subsequent injury fund case and the injured worker gets the full benefit there. FYI, the injured worker gets the benefit of the doubt, because the subsequent injury fund adds permanent disability and the injured worker is compensated in that fashion.

You should stay out of the injured workers' lane, because you are not doing them any favors with your bias.
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Re: inextricably intertwined pre and post 2013 injuries (Califor

Postby jpod on Thu Feb 11, 2021 2:45 pm

LawAdvocate:

I had not considered the SIF; that point does change my view if in fact the employee can be made whole.

I reject your last comment; I am an employee too and was raising a concern I would have as an injured worker. Additionally had I not raised my concern on this forum I wouldn't have learned your point about SIF.
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