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Considering The Impact Of Pre-Existing Impairment And Disability Robert H. Taylor, M.A.,C.R.C.,C.D.M.S.,C.P.C.,C.L.C.P. Vocational Diagnostics, Inc. Phoenix, AZ Presented at the NARPPS Forensic Section Seminar Las Vegas, Nevada December 4, 1999 Introduction: The concept of apportionment has its origin in worker's compensation claims. It arose out of recognition for the harshness of the last-exposure rule requiring that a single insurer assume the entire cost of any single injury. This rule has been tempered in some jurisdictions by a practice permitting apportionment between two carriers when two successive incidents combine to produce the final disability. The leading case establishing this practice is the Anderson case decided by the New York Court of Appeals in 1931. In this case, the claimant had fractured a hip in 1926. In 1927, the claimant went back to work, claimant's medical report showing a good union of the fragments. Later in 1927, when claimant was working for a different employer with a different carrier, claimant felt something crack in his hip while helping 4-5 other men lift a timber weighing about 1,000 pounds. The fragments had evidently not united as well as had been thought, and had separated under the strain. The court said: On the evidence the present disability exists by reason of the two accidents, and the compensation should be equally apportioned between the two insurers. Unjust it is that the second insurer should bear the entire liability when the second accident was related in large measure to the first. No less unjust it is that the first insurer should bear the entire liability if it appears that without the second accident an earlier recovery might have been had. Apportionment has been applied in accidental injury cases as well as occupational disease cases. The underlying concept, though, is the same. The presence of a prior disability should be considered when considering disability arising from the subsequent event. Several states have special apportionment provisions in their worker's compensation statutes, under which an employee with a prior disability receives for a subsequent disability only what he would have been entitled to for the latter disability considered alone. Claimant, who had been a pack-a-day cigarette smoker for 30 years, had been exposed to industrial dust and fumes for 40 years, had become unable to work due to obstructive lung disease. The Compensation Board awarded him benefits based on the finding that he was 40% permanently partially disabled. The employer contended that the award should have been awarded 50% to industrial causes and 50% to claimant's smoking. Although one physician had testified that claimant's disability was due 50% to his smoking history, the California Supreme Court held that apportionment was not warranted. The Court, distinguishing the situation where a pre-existing weakness caused a 50% disability from that where the weakness is 50% of the cause of the disability, held that the former case was grounds for apportionment while the latter is not. In the latter situation, said the Court, the employer must show that the disability would have occurred as a result of the personal condition without any exposure to harmful influences at work. It is not possible to discuss strategies for considering the impact of pre-existing disability on evaluation of earning capacity as a result of a subsequent injury when the claim is being adjudicated in the realm of worker's compensation. The reason for this is due to the specific statutes that exist in individual states and resultant case law which controls and further defines both the meaning of and method of establishing apportionment in a specific state. What may be recognized by courts in Arizona and Nevada may not be recognized by states such as Michigan and Kentucky. This presentation, therefore, will consider the concept of apportionment as it applies to civil litigation where claims for damages related to lost wages and diminished earning capacity are being made. Earning Capacity Revisited: As we know, simply put, earning capacity represents the ability of one to sell his or her services in the open labor market. One's ability to work and earn wages cannot necessarily be determined by the wages that one was earning at the time an event occurred. It is important to note, however, that with an established earnings stream or, upon review of an earnings stream which results in recognizable "peaks and valleys," such information may be significant. Earning capacity can be affected by the following factors:
Impairment: A medical term referring to any anatomic or functional loss; Disability: A non-medical term referring to an alteration of one's ability to engage in gainful activity because of an impairment and any other factors; Earning Capacity Disability: An alteration of one's ability to perform the essential functions of jobs for which they might otherwise be qualified by virtue of the factors previously identified. Impairment + Functional Limitations = disability (and possibly) earning capacity disability. The bridge between impairment and disability is the identification of functional limitations that specifically arise from an impairment. These limitations may create an earning capacity disability if limitations preclude one from performing the essential functions of a job for which they might otherwise be qualified. The key to determining lost earning capacity arising from a specific event is to first establish one's earning capacity at the time of an event. Establishing Pre-Existing (Earning Capacity) Disability: Review of a complete set of medical and non-medical records pertaining to the subject accident and, where possible, prior to the subject accident are critical to establishing the presence of pre-existing permanent impairment and functional limitations. Examples of key records to aid in this determination are:
One of the most critical pieces of information to obtain in the evaluation of a lost earning capacity claim is the Social Security Administration Annual History of Earnings. This is the same document that any worker can (and should) obtain periodically to verify accurate reporting of earnings to the Social Security Administration. This document will show one's reported earnings to the Social Security Administration from the time such contributions began, usually at such time as one first entered the workforce. This document is a more reliable source of information than individual tax returns and inevitably provides a broader earnings base upon which to draw conclusions regarding one's earnings history. Should examination of this document reveal "peaks and valleys," these specific points in time should be closely scrutinized to determine further the reasons for these trends. Significant decreases in earnings are probably indicative of the presence of medical or non-medical problems which might have been related to an earning capacity disability. The above records should be obtained and closely reviewed to identify the presence of conditions which might have affected the individual's past ability to work. Should review of these records identify the presence of permanent impairment (with or without the establishment of functional limitations), This would be prima facie evidence of the presence of a condition which may have resulted in a prior earning capacity disability. The Role of Functional Limitations in Supporting the Presence of Prior Earning Capacity Disability: Even if medical records and other documents support the presence of permanent impairment prior to the date of the subject accident, at times the prior records do not identify the presence of functional limitations. There can be many reasons for this, including a lack of specific inquiry in prior administrative determinations. In the case of a prior incident which may have resulted in a claim for damages in a civil lawsuit, a prior attorney may not have solicited this information. A failure to establish this information at the time, however, does not preclude a subsequent determination that functional limitations were present as the result of an impairment. Establishing Prior Functional Limitations: A number of tactics can be employed to establish the presence of prior functional limitations when this determination has not been made. One of the most effective means of doing this is through an Independent Medical Examination (IME). The purpose of a defendant scheduling an IME is typically to identify the presence of permanent impairment, functional limitations and causation of specific injury and condition arising from a certain event. There is nothing to preclude an inquiry by the IME physician if prior medical conditions and functional limitations would be expected from the prior impairment. The IME physician, however, must have records and an accurate history of the prior injury and medical conditions in order to adequately address this question. As an example, assume that prior medical records as well as records of a prior worker's compensation claim establishes that five years before the subject accident, an individual sustained a back injury which resulted in a surgical lesion. For whatever reason, no prior physician established the functional limitations that the subject possessed as a result of this condition. This tactic of asking an IME to address this issue is especially interesting when used by a defendant. Most defense IME's, for instance, hope to establish that there is either no causation for a condition or that the condition is not otherwise disabling. What we are specifically asking the IME physician to do in this case is to identify that a prior condition was disabling. We are not making inquiry of the physician, though, and asking whether a disability existed as a result of a prior injury. We are, instead, asking the physician to simply identify what functional limitations would typically arise from a prior condition based on the medical records and the physician's expertise and experience in treating this prior condition. In the example of the prior back injury, it would be reasonable to expect a physician to establish restrictions such as no repetitive bending, stooping, or lifting over 25 pounds. These limitations would, obviously, preclude one from performing the essential functions of all but sedentary and light work and possibly some jobs that meet the definition of medium work. It would all but preclude the subject from performing the essential functions of any job in the skilled trades. If the subject was a carpenter, plumber, etc., and was alleging the ability to perform the essential functions of this job at the time of the subject accident, the presence of these limitations would clearly establish that there was no foundation for such a claim. Another means of obtaining appropriate foundation for the functional limitations is through having the vocational rehabilitation specialist consult with a qualified medical professional. Under the Federal Rules of Evidence as well as the Rules of Evidence in most, if not all state courts, an expert is entitled to rely upon the opinion of another expert in support of his opinions. Therefore, assuming that I have been given the blessing by the attorney having retained my services, I would be permitted to rely upon the opinion of an orthopedic surgeon with whom I chose to consult in order to obtain this information. The Typical Plaintiff Argument: Almost without exception, it is the typical plaintiff argument that at the time of the subject accident, his condition was "whole," without the presence of any condition that would affect his ability to work. It can be expected that earnings in the year of the subject accident or prior year will be argued as being presumptive of the plaintiff's earning capacity, especially if these earnings are the highest the plaintiff has ever demonstrated. At times this is reasonable, however, this presumption is a rebuttable presumption. If the vocational rehabilitation expert has the opportunity to interview the plaintiff, the presence of the pre-injury earning capacity disability may be readily obtained assuming the plaintiff provides an accurate history. Detailed information-gathering pertaining to past medical history, work history, and effective prior injuries on vocational and avocational activities can also establish the presence of prior earning capacity disability. In many jurisdictions, however, it is not possible for a defense expert to interview a plaintiff. Should this be the case, the prior records identified previously must be the basis for this evaluation. Establishing Prior Earning Capacity Disability: Once the presence of a pre-existing condition and functional limitations is established, attention can be placed on the impact of the condition. Vocational rehabilitation experts review medical records, trade journals, and other treatises in the course of their work on a daily basis in order to obtain understanding of the impact of a specific condition on one's ability to work. Therefore, it would be reasonable to rely upon various trade journals, governmental publications, and other documents available to us to establish the occupational impact of a specific medical or psychological condition on one's ability to work. Examples of such publications include, but are not limited to:
Assume that an earning capacity disability exists at the time of a subject accident. Further assume that a plaintiff was working beyond his true functional capabilities at the time of the subject accident. Does this mean that the plaintiff did not truly have the capacity to perform the essential functions of the job at which he was employed on the date of the subject accident? This very well may be the case, depending on other information available. Once the prior earning capacity disability is established and it has also been established that the plaintiff did not have the capacity to perform the essential functions of the job at which he was employed on the date of the subject accident, in my opinion, a plaintiff would not have an earning capacity predicated on that particular job or cluster of jobs of which the date of injury job is a part. We know from experience that there is the enhanced probability of industrial injury if one is working beyond their residual functional capacity. Would any vocational rehabilitation expert dare write a rehabilitation plan for an individual to work in a job that exceeds their true functional capabilities? This creates an interesting shift in the burden from the defendant to the plaintiff. It is now the plaintiff who must argue that, contrary to the claim that they are making with regard to the instant case as to the impact of a disability on one's ability to work, there was no such impact arising from the prior injury and resultant limitations! Tying it all Together:
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