Apportionment Update: Malcolm v. CNA Ins. Group (2008) 36 CWCR 176  and Gorman v. WCAB (2008) 36 CWCR 116

By
Megan K. Rogers

Malcolm v. CNA Ins. Group (2008) 36 CWCR 176

Supported apportionment when a disability is caused by non-industrial factors even when those non-industrial factors are repaired or removed.

The facts: Applicant injured her left shoulder and right hip requiring her to undergo a right hip replacement. Applicant had been previously diagnosed with osteonecrosis. The med-legal doctor concluded that had Applicant not suffered from osteonecrosis, she would not have fractured her hip and would not have needed a hip replacement. Thus he apportioned 25% of the injury to non-industrial causes.

The Board panel concluded that although the hip replacement was the direct result of the injury, the need for it was caused by non-industrial factors. Osteonecrosis was the cause of the disability even though it was no longer present in the hip. Despite the fact that the surgery removed the degenerative process, apportionment still applies.

Gorman v. WCAB (2008) 36 CWCR 116

In order for a Med-legal evaluator to provide for apportionment, he must explain how and why a portion of the disability is being caused by factors other than the injury.

The facts: Applicant suffered a stroke causing 91% disability. A petition for new and further was filed and Applicant was re-examined by the former QME. The QME provided that applicant was now 100% disabled but apportioned 40% of the stroke condition to Applicant’s elevated cholesterol and 60% to industrial causes.

The QME indicated that high cholesterol was not a pathologic condition which in and of itself leads to strokes. However it is one of the risk factors in those who do develop strokes.

On reconsideration, the Board found that the doctor failed to distinguish between the cause of the injury and the cause of the disability. Apportionment of a risk factor for an injury is not the same as apportionment to an underlying pathology.  Also the doctor failed to state his position on a reasonable medical probability.  Thus apportionment does not apply.