4664 apportionment issue (California) (California)

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4664 apportionment issue (California) (California)

Postby theAxe on Wed Jun 17, 2009 8:17 am

- Old schedule low back injury settles long ago with XX% PD noting 2 herniated discs causing radiculopathy, weakness and atrophy of bilateral legs.

- New injury to neck with documented herniated discs causing radiculopathy, weakness and atrophy of bilateral upper extremities.

Docs agree on new injury disability level, & apportionment to pre-existing degenerative changes and that new injury did not increase or affect old injury findings or disability. No apportionment was given in the medical records to the old low back injury.

4664 requires apportionment to be made for old awards to "the spine" but recognizes that "upper extremities" and "lower extremities" are separate body parts for the purposes of this law.

As PD using AMA Guides for neck injury is less that that previously awarded for the back using old schedule rating, DA argues that NO additional PD should or can be awarded, as ALL is absorbed by the previous award as both injuries were to "the spine."

AMA Guides clearly distinguish the cervical from the lumbosacral spine and if both injuries occurred at the same time, there would be PD given to both areas - correct?

Clearly the IW has greater actual functional impairment after the second injury
- in fact one could argue that their current functional impairment having to deal with both problems simultainiously is greater than just the sum of each impairment individually.

1. What do you think of the DA's position?
2. Is this what the legislature intended?
3. What do you think of the likelyhood that the WCAB will find that the requirement that "the spine" be treated as one entity while seeing the upper and lower extremities as separate is a contradiction in the light of the present scenario?
4. What do you think the effect of such a finding would be?
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Re: 4664 apportionment issue (California) (California) (Californ

Postby rosellavera on Thu Jun 18, 2009 1:06 pm

Sorry Axe, but I can't go into detail as I am less than 6 weeks away from the bar exam. Perhaps this case can help.

Minvielle v. County of Contra Costa.pdf
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Re: 4664 apportionment issue (California) (California)

Postby speropotus@yahoo.com on Fri Jun 19, 2009 7:07 am

I too believe that the issue is overlap, not the mere presence of a prior award for spinal disability.

If you are seeking cervical spine disability now and there is a prior award for a lumbar disability, does the language in the medical reports match up, i.e. no heavy lifting. Is the new language subsumed within the old, i.e. no very heavy lifting for the neck and a prior no heavy lifting for the back? I believe that these types present a problem.

An effort to have the doctor describe the new cervical spine restrictions differently than the old back restrictions is simple. Review present complaints to see what movements or activities are troublesome, and see if you can get the evaluator to say what the applicant should avoid currently due to the neck based on those problems. Some publications have good tables that detail all the different methods of describing restrictions with their proposed relative % values.

In my opinion, new v. old is more troublesome. PD is paid for loss of ability to compete in open labor market under old schedule, and for diminished earning capacity under the new. Thus, theoretically, argue different concept of disability. Did the old back injury cause the new neck permanent disability? If the restriction language is similar at close of discovery, overlap is the question to avoid and sticking with some other aspect, i.e. different spinal areas or different concepts, or ???

One part in 4664 does say that the spine is one of the "regions of the body." It is not broken down further in the code. It also asks whether "a prior award of permanent disability" was received. The argument that comes to my mind is what was the basis of the prior award of disability, i.e. what language of disability was used to construct the award. Disability now is determined using AMA Guides, and the Guides are very concerned with function. So if the applicant has different, additional restrictions now from this new injury, he has lost additional function for which he has not been compensated. SImply claiming the present of an award to the "spine," should not be sufficient. What losses caused the applicant to receive a prior award of disability? Did he rehabilitate and lose those things again, or has he lost something different? Did the back injury cause the new neck injury is something I would ask as well. Remember the presumption is rebuttable.

Best of luck.

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Re: 4664 apportionment issue (California) (California)

Postby chirple on Sat Jun 20, 2009 8:14 am

Try this.

Ask the doctor to provide current disability under AMA for THE ENTIRE SPINE, including the lumbar. Because you have multiple levels, with documented radiculopthy, the combined PD will be higher when rating the entire spine. Then apportion out the low back as it was not caused by this injury or subtract the prior Award. What you have left is a full AMA rating for "the spine" with the appropriate percentage that is due to this injury.

After all, if you are going to take credit for the prior Award because it is the same body "region" the doctor must assess all PD for that body region, then apportion out for non-related disability. Seems like the round about way to get to it, but....check the numbers. See if it works. Just a thought.
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Re: 4664 apportionment issue (California) (California)

Postby jakelast@aol.com on Sat Jun 20, 2009 9:21 am

I think the answer to this case is actually quite simple. While the "spine" is considered a single unit, that is not for overlap purposes but for the 100% limitation on total disability for that region of the body. This is an issue of overlap and you have two strong arguments that there is no overlap.

1 - Under the ama guides the neck and low back are different parts of the body and do not overlap as body partys (there might be rare occasions when there is overlap from the same kind of impairment such as a severe low back and cervical spine injury that both cause gaid disturbance - but that is going to be extremely rare). Under the Strong and Sanchez cases in order for there to be apportionment there must be overlap either based on the description of PD (not likely with different schedules) or overlap to the same part of the body (different concept under AMA with many more uniquely identified body parts). While Sanchez and Strong held the applicant had the burden to show that disability in the same region of the body did not overlap, Kopping v WCAB is a higher level of authority (Court of Appeal) and held the employer must always prove the elements for apportionment, including showing overlap between an old disability and a new one.
2 - The Minevile case previously cited would prohibit apportionment simply based on the old rating under lc 4664 but still potentially allow apportionment based on lc 4663 if there is overlap.
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