Apportionment refers to the allocation or division of the causation of an injured worker’s condition. Addressing apportionment in QME reports is critical as it determines the extent to which a pre-existing condition, non-industrial factors, or a combination of factors contribute to the overall impairment or disability of the injured worker. As a QME, being comfortable with apportioning the cause of the injury will not only increase their quality but establish a reputation of fairness and objectivity.
Identifying Pre-Existing Conditions
Apportionment is required when there are pre-existing conditions or disabilities that existed before the industrial injury. Apportionment rules changed significantly with SB899 (April 19, 2004), which stated apportionment was to be based on causation. Labor Codes §4663 and §4664 were introduced at that time and mandated a physician to determine what percentage of permanent disability was directly caused by the injury occurring in the course of employment (either specific or cumulative) and what percentage was caused by other factors both before and subsequent to the injury in question (Labor Code §3663). Other factors to be taken into consideration included comorbidities that would potentially predispose to the development of the diagnoses barring the injury in question. Diabetes, for instance, can predispose to the development of carpal tunnel syndrome. A physician must therefore consider if the records available support apportionment to the diabetes. The role of a QME is to evaluate whether the current impairment or disability is solely attributable to the work-related injury or if there are other contributing factors.
Determining Percentage of Apportionment
QMEs assess and assign a percentage of apportionment to different factors contributing to the overall impairment. The AMA Guides 5th Edition is referenced in this process. This percentage reflects the portion of the disability that is attributed to each factor. For example, if a worker had a pre-existing back condition, and the QME determines that 30% of the current disability is due to the pre-existing condition, apportionment would be 30%. When there are multiple injuries being addressed, case law from Benson v. WCAB is required. Benson indicates that you must apportion between the injuries in question. In the past, it was acceptable for physicians to state 80% industrial and 20% nonindustrial, without specific apportionment between multiple industrial injuries being evaluated. Taking Benson into account, any permanent disability attributable to multiple and successive injuries to the same body parts or condition must be separately apportioned between the multiple injuries.
Compliance with State Laws
Apportionment practices are determined by each state, and Workers’ Compensation laws dictate how apportionment should be calculated and applied. Some states have specific limits on the percentage of apportionment that can be assigned to certain factors, such as pre-existing conditions.
In New York, for instance, case law holds that an injured worker’s pre-existing condition must have been both symptomatic and disabling at the time of the new injury. If the injured worker was able to function with a pre-existing condition in a job environment prior to the work accident, then no apportionment will be allowed.
In California, there are many details of the Labor Code and case law that apply to accurate apportionment. The previously mentioned Benson decision ensures specific apportionment for all claimed injuries. When this cannot be done, they are considered to be “inextricably intertwined” and this must be discussed. The Lindh decision discusses pre-existing asymptomatic medical conditions that contribute to injury and can be apportioned, unlike in New York.
Impact on Benefits and Compensation
The percentage of apportionment can impact the level of Workers’ Compensation benefits provided. A higher apportionment to non-industrial factors will result in a lower compensation amount. It’s important to know that apportionment cannot be based on speculation. Medical evidence is required to support any apportionment determinations.
A firm grasp on apportionment ensures a fair and accurate assessment of the factors contributing to an injured worker’s condition, ultimately influencing the determination of benefits and the resolution of Workers’ Compensation claims. As a QME, producing high-quality reports with apportionment supported by the medical evidence will not only benefit the injured worker, but also elevate your reputation in the industry.
