Home > Uncategorized > Parties Told to Develop Record When Applicant’s QME Retires w/o Addressing Apportionment

Parties Told to Develop Record When Applicant’s QME Retires w/o Addressing Apportionment

Hear now, dear readers, of the case of Daniel Prather v. City and County of San Francisco.  Mr. Prather sustained an injury to his back over a period of time ending in 2002, at which point he was 53 years old.  (On a completely unrelated note, what is the retirement age, if any, for employees of San Francisco?  Applicant apparently now splits his time between his home in Illinois and his home in San Francisco).

The parties retained their own Qualified Medical Evaluators, and applicant’s QME found applicant to require a wheelchair to ambulate unless the distance was less than 100 yards, in which case applicant could move around using crutches.

But then defendant raised the issue of apportionment – applicant had five back surgeries since his claimed date of injury, and had been diagnosed with pre-existing lumbar scoliosis, and at least some of his permanent disability was due to “the progression of this condition over a period of many years.”

But how much apportionment is appropriate under Labor Code section 4663?  Defendant’s QME apportioned 1/3 of applicant’s impairment to the non-industrial scoliosis.  Applicant’s QME, however, was silent on the matter and did not address apportionment in his report.  Why didn’t the parties just request a supplemental report?  Because applicant’s QME had retired and was no longer available.

Your humble blogger has a question which neither the WCJ’s report nor the panel opinion answers – Labor Code section 4663, subsection (c) states in pertinent part: “[i]n order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination.”

If applicant’s QME failed to include an apportionment determination, then how could the findings of the QME with respect to permanent disability be considered complete?

This lawyer understands that this is a 2002 date of injury claim, which precedes the 2004 implementation of Labor Code section 4663.  However, the report on which the WCJ relied was dated December 3, 2008, and if some of 4663 applies to pre-2004 claims, why not all of it?

As applicant’s QME was retired, the WCJ relied on the defense QME’s apportionment opinion, apportioning 1/3 of applicant’s disability to the non-industrial scoliosis.  Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, and the WCAB granted.

The WCAB found that defendant’s QME’s opinions with respect to apportionment were not substantial evidence because “the degree and/or progression of applicant’s scoliosis was not documented and [defendant’s QME] does not explain how or why he attributed one-third apportionment to the scoliosis as opposed to some other percentage.”

As neither report was complete with respect to apportionment, the WCAB ordered the WCJ to develop the record further, allowing the parties an opportunity to agree to an AME, or, in the alternative, appoint an regular physician in accordance with Labor Code section 5701 to evaluate applicant and, presumably, develop the record.


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