Home > 4663, Apportionment > When you believe in magic (and § 4663)

When you believe in magic (and § 4663)

Sally the secretary, while seated at her desk, bends over to pick up a file.  Hearing a pop in the back and immediately feeling pain, she then undergoes a series of treatments, including laminectomy and fusion on the L4-5 discs.  Since this is a pre-2005 injury, at high noon, the dueling Qualified Medical Evaluators meet to settle their sides’ differences.

Applicant QME’s weapon of choice?  The standard go-to: 100% industrial causation, no apportionment.

Defendant’s QME answers with a 70% non-industrial causation – Sally’s multilevel degenerative disc disease and degenerative scoliosis.

Of course, Sally argues that (1) there is no prior award; and (2) she was, as she says, asymptomatic before her industrial injury.  So why should there be any apportionment at all?

Defendant had nothing to rely on at all, except some vague and generally rejected reference to the Labor Code.

Whose shot proved the truest?  Well, the answer to that depends on who you ask.  The WCJ issued a Finding and Award based on applicant’s QME’s opinion, finding 100% industrial causation.  The Appeals Board saw it differently…

Relying on Labor Code § 4663, the Appeals Board sided with defendant in this case, saying the law is the law, and no symptoms need have existed prior to the industrial injury.   Applicant’s writ of review was denied.

It just goes to show you – sometimes it really is worth it to go through the recon process.   When the case comes out on Lexis, take a look for yourself:  Frances LaRue v. Workers’ Compensation Appeals Board, State Compensation Insurance Fund.

Categories: 4663, Apportionment
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