“What if” Apportionment

By Arthur Johnson, Esq.

We are increasingly encountering defense tactics of “what if” apportionment, sometimes successful. This type of questioning of AME/QME physicians should be resisted at all times, at all costs. It is simply and absolutely wrong. It is sometimes very subtle and has been encouraged by the concept in the Escobedo case of “apportionment to pathology.”

“What if” apportionment takes various forms, such as:

1) Assume my client didn’t have... (osteoporosis, obesity, add your own pre-existing condition). -
What the questioner is actually asking the doctor to assume is the hypothetical perfect person that isn’t your client. The questioner is asking the doctor to assume what if the applicant were perfect, what if she didn’t have obesity, age, genetic pre-disposition, poor heredity, etc. Isn’t it true that she wouldn’t have the degree of disability she now has if she were previously perfect?

The problem with this concept is that it is legally, morally, and medically wrong. It is medically wrong because the questioner is asking about a hypothetical person that doesn’t exist. None of us are perfect. Even Arnold would have heart disease apportioned to his male sex, use of cigars, use of steroids, should he have an on-the-job heart attack. It is legally wrong because it flies in the face of almost 100 years of apportionment decisions requiring the claimant to be evaluated as he is, not as some hypothetical perfect person would be. This is the concept of “you take them as find them.”

It is morally and ethically wrong because it deprives a person of the permanent disability benefits they are legitimately entitled to based on apportionment to “risk factors” that are inherent in the human condition and for which there may have been no disability. We cannot control our age, our sex, our parentage, our body type, our blood chemistry, our bone density, our nationality, or our ethnicity. To say that there should be apportionment to such “risk factors” is morally and ethically wrong. It apportions to a “fault” concept, the fault of the claimant in not being perfect. We have a “no fault” workers’ compensation system. To insert such concepts of “fault” (not being perfect, in comparison to a hypothetical non-existent perfect person) poses a higher standard of causation of disability in the workers’ compensation field than exists in the civil field. In the civil field, the concept that you take them as you find them is memorialized in BAJI 14.65, which states:

“A person who has a condition or disability at the time of an injury is not entitled to recover damages therefor. However, a plaintiff is entitled to recover damages for any aggravation of a pre-existing condition or disability, caused by the injury.
This is true even if a condition or disability made plaintiff more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.
Where a pre-existing condition or disability is so aggravated, the award of damages is limited to the additional injury caused by the aggravation.”

Other examples of “what if” questions are slightly more subtle:

A) Mr. Applicant is obese, isn’t that true? Isn’t it also true that if he were not obese, he would not have the degree of disability he now has?

That is an objectionable question. It is asking the doctor to assume a hypothetical non-obese person who is not your client. It is asking the doctor to speculate on what the situation would be if the injury had not occurred. It is asking the doctor to speculate as to what the effect of the injury would be on a “normal” hypothetically perfect person. That isn’t your client and you should object to such speculative questions.

B) Isn’t it true, doctor, that Mr. Applicant had pre-existing degenerative disc disease? Isn’t it true that people with degenerative disc disease are at higher risk for developing spinal problems? Isn’t it true, doctor, that without the degenerative disc disease, he would not have the degree of disability he now has?

That’s an objectionable question. It again asks the doctor to speculate on what disability a hypothetical “perfect” person with a hypothetically “perfect” spine would have. The fact of the matter is none of us have perfect spines. The claimant was asymptomatic and the defense attorney has asked the doctor to “speculate” on the effect of the trauma on a non-existent hypothetically perfect person. That is objectionable and speculation.

C) Assume that the applicant did not have diabetes. Isn’t it true that if he didn’t have diabetes, he wouldn’t have lost his foot from the minor injury that occurred and that the injury would have healed with little consequence?

Those are objectionable questions. Again, those questions are asking the doctor to assume a hypothetical person that isn’t your client: a person without diabetes. Your client does have diabetes. If that diabetic condition was “lit up” with an injury that ultimately caused loss of the foot, that is fully compensable without apportionment. You take them as you find them, and that concept has not been removed from the law by SB 899, Section 4663, or Section 4664. It is the effect of the injury on your client that is under consideration, not the effect of the injury on an unknown, hypothetically perfect person without diabetes. (See also Escobedo, footnote 9, in this regard.)

There are a myriad of other examples that could be given. Some of the questioning is very subtle. Whenever you see a doctor being questioned by a defense attorney about pathology, about “risk factors,” when the defense is asking the doctor to assume your client is somebody without their own characteristics or have some perfectness that they don’t have, object. Object strenuously. Object on the basis of speculation, guess, surmise, and conjecture. Object on the basis that the questioner is assuming a hypothetically perfect person that isn’t your client. Object on the basis that it is your client’s disability and the cause of that disability of your client that is under consideration, not some other different person.

The bottom line is that we are all human, we all have faults and frailties, susceptibilities, and risk factors. My arm isn’t made of iron. It has a risk factor of being broken because it is bone. To say that, for example, a fall that breaks my bone should be apportioned to the fact that bone breaks is absurd to think about. Yet that is the kind of “risk factor” apportionment concept the defense is pushing for based on Escobedo. You can and you should put a stop to it. That is your job as an applicant’s lawyer.