April 19, 2007
 

Appellate Case on Labor Code § 132a & Substantial Evidence for Apportionment

The Second District Court of Appeals has reversed a W.C.A.B. decision that denied liability under Labor Code § 132a for a public entity that required its employees to use vacation time rather than sick leave for lost time for industrial injuries but allowed employees who were disabled for non-industrial reasons to use sick leave.  The Court also upheld the W.C.A.B.'s determination apportioning some of the PD to non-industrial factors, holding the medical information relied upon by the W.C.A.B. is substantial evidence in support of the apportionment decision.

The case, Anderson v W.C.A.B., was originally denied hearing by the Court but the California Supreme Court granted applicant's appeal and transferred back to the court for hearing.   The defendant city had interpreted its Memorandum of Understanding (MOU) with its employees to allow it to restrict the use of sick leave for physician's visits related industrial injuries.  However the city's policy also allowed use of sick leave for similar visits on a non-industrial basis.  The Appellate Court concluded the weight of case authority, especially the Supreme Court decision in Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 (Lauher) did not authorize an employer to treat industrially injured employees differently from non-industrially injured employees regardless of the provisions of Local ordinances or the MOU with the employee's bargaining unit.

The case before us does not concern payment for accumulated sick leave prior to disability retirement, statutory leave of absence with pay in lieu of sick leave, or payment of TD.  This case concerns the use of ordinary sick leave by active, industrially injured employees for medical appointments.  City has made the use of sick leave dependent solely on whether or not the worker is industrially or non-industrially injured.  Such disparate and detrimental treatment constitutes illegal discrimination in contravention of section 132a. 

The Court appeared to have little difficulty in considering the treatment of industrially disabled employees disparate from those disabled for other reasons.

City could choose not to provide sick leave to any of its employees.  But, if City provides sick leave to its employees, it cannot refuse to permit its use for industrially-related medical appointments when non-industrially injured workers are not so restricted.  Here, City permits non-industrially injured persons to use sick leave for medical appointments but requires industrially injured persons to use earned vacation time. 

The Applicant had also sought to overturn the W.C.A.B.'s apportionment of his PD to non-industrial causes arguing both that the statutory basis for applying the new apportionment rules did not exist and that the evidence used was not substantial enough to justify the apportionment on legal grounds.  The Court had little difficulty with the argument that the application of the new apportionment statutes was appropriate in the case, relying on Kleemann v W.C.A.B.  On the issue of the medical record as substantial evidence that Court was equally definitive:

"In both his lengthy medical report and his deposition testimony, Dr. McDavid explained how and why he arrived at his apportionment figures.  He medically examined Andersen, reviewed his medical history, considered his job description and tenure in the position, and sifted through other historical information about his life, as well as subpoenaed records.  He also considered germane facts gleaned from the reports of his chiropractor, Dr. John Michalak.  In his deposition, Dr. McDavid testified that his opinion is based on his "best medical judgment" to a "reasonable medical probability." 

In his medical report, Dr. McDavid explained that Andersen had to repetitively use his hands to grasp, manipulate, push and pull objects at work.  He also noted that Andersen's work required substantial 10 key and computer keyboarding.  Dr. McDavid took into account Andersen's participation in the regular activities of life, such as driving and moving furniture on occasion.  Dr. McDavid found evidence of both carpal and cubital tunnel syndromes, as well as transposition of the ulnar nerve of the right elbow, and degenerative discs. 

In Dr. McDavid's medical judgment, Andersen's activities at work were the primary cause of the PD he sustained.  Initially, Dr. McDavid concluded that about 70 percent of his PD was caused by cumulative trauma at work, and about 30 percent of his PD was caused by non-industrial factors of daily living.  Later, Dr. McDavid revised upwards his breakdown of apportionment to work.  After reconsidering all the factors, he concluded that 80 percent of his cervical disability and 70 percent of his upper extremity disabilities were caused by work. 

Dr. McDavid conceded that the percentages he provided are approximations that are not precise and require some intuition and medical judgment.  This does not mean his conclusions are speculative.  He stated the factual bases for his determinations based on his medical expertise, as set forth in his lengthy report and deposition.  Board discussed these facts and factors as well.  After reviewing the entirety of the evidence, we conclude that substantial evidence supports Board's conclusion regarding apportionment."  (Emphasis added by undersigned)

The Court rejected applicant's arguments that the opinion of the physician was "speculative" because he used "medical judgment" and the opinions were not precise.  However as pointed out by the Court, precision is not required where the statute requires an "approximate" percentage.  The language in this case, along with the language in the Yeager Construction v W.C.A.B. (Gatten) provide substantial legal authority for the kind of evidence that is required as a basis for the W.C.A.B. to rule on apportionment.  In particular as noted by the Court, Dr. McDavid provided answers to the "how and why" on the issue of apportionment.  The answers to these questions seem to be the threshold that must be crossed by a physician to justify an opinion on apportionment.

The case can be reviewed by clicking on the case name above.

Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization

 

SHAW, JACOBSMEYER, CRAIN & CLAFFEY

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Oakland, CA 94612

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jakejacobsmeyer@shawlaw.org