Alves: Lifetime Jurisdiction: Not Only for Asbestosis| Staff Compensation Information

By Ryan T. Alves

Monday, April 19, 2021 | 0

Most professionals who work in California’s Workers Compensation System for a period of time are familiar with the fact that asbestos claims can linger well beyond the usual five years. After that, the WCAB usually loses its jurisdiction.

Ryan T. Alves

However, what if you have a case with a much more common post-operative infection? What if this infection does not currently interfere with the applicant’s daily activities? Are you on the hook because of an impairment?

The Workers’ Compensation Appeals Board addressed precisely this issue in the panel’s decision in Brian Gault vs. Americana Vacation Clubs (2018).

The case concerned an employee who sustained an injury to his right knee on the first day at work. The injury was the latest in a long line of knee problems and surgeries, including a full knee replacement in 2001 and a revision replacement in 2013. Dr. Tapper, the orthopedically qualified medical assessor, determined an impairment that was rated 3% by the Disability Evaluation Unit after 95% allocation to the previous knee problems.

Unfortunately, the applicant needed an emergency knee replacement after his injury and was diagnosed with an infection after the procedure.

Dr. Bellinger, QME for Internal Medicine, found that the infection was 100% related to the recent injury. The defendant had no objection to the division of Bellinger, but questioned his determination of Class II impairment as set out in Table 8-2. According to the AMA guidelines, this impairment assessment required “signs or symptoms of a skin condition, present or intermittent, and impaired performance of some activities of daily living (ADL) and may require intermittent to constant treatment”.

In the supplementary coverage, Bellinger admitted that all of Tapper’s ADL deficits were determined on an orthopedic basis; Neither was associated with the latent infection. As part of the filing, Bellinger stated that the applicant currently has no symptoms or adverse effects from chronic antibiotic therapy on which his impairment analysis was based, but that he believed that such effects were inevitable.

Therefore, the board asked the question as follows: Did the applicant have a permanent disability due to the injury because of his chronic infection and the resulting potentially lifelong antibiotic treatment required to cure or alleviate the disease?

The Board decided that in the absence of current disability due to the infection, a 3% price for permanent disability was appropriate. This was a nice discount from the 31% given by the trial judge.

That was a great result for the defendant, wasn’t it? Well, something like that.

The award was classified as “tentative,” and the commissioners quickly compared the applicant’s infection to other insidious, progressive diseases and to exclusion from the five-year limitation of WCAB jurisdiction established by the California Supreme Court at General Foundry Service v. Workers’ Comp. Appeal Vol. (Jackson) (1986).

All of the Jackson medical experts agreed that the condition of asbestosis was progressive and not yet permanent and stationary. Similarly, Bellinger said that the progression of the Gault infection and the impairment that will result from antibiotic therapy are not a question of “if” but “when”.

The chronic infection was not effective in MMI. Therefore, the reservation of jurisdiction and the potential for future award were appropriate. Similar reservations have been found appropriate in hepatitis C cases.

It is worth noting how limited this panel decision is. Although the Merriam-Webster dictionary cites the definition of “progressive” disease as a disease of increasing severity, not all injuries that worsen over time qualify. For example, a degenerative disease of the garden variety is not necessarily suitable.

In the case of Ruffin v. Olson Glass Co., no reservation of jurisdiction was found for a degenerative knee and chronic lumbosacral distress. While these conditions can continue to worsen, it is not an insidious progressive disease.

Even in cases of post-operative infection, the defense should insist that the QME explain exactly what potential future effects the infection is likely to have, how likely those effects are, and whether those effects could remain critical WCAB reserves jurisdiction.

We recommend investigating the infection in question and asking the QME to comment on the published medical literature if possible. If the opinion is still unfavorable, a well-researched and prepared filing of the QME is required.

In this case, and depending on the exposure, it may be worth consulting another doctor who is practicing in the same specialty as part of your deposit preparation.

Ryan Alves is Bradford & Barthel’s Sacramento partner and executive attorney. This entry from Bradford & Barthel’s blog is published with permission.

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