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THEY HAVE LOST THEIR MINDS!

Unfortunately, to the injured workers’ detriment, it seems as if the powers that be have once again… lost their minds.

What I am referencing this time is the latest inroad on apportionment. One aspect of “apportionment” is the concept/principle whereby a physician assigns a percentage of an individual’s overall permanent impairment to a prior injury, a prior award, an underlying degenerative condition, an underlying asymptomatic (without symptoms) pathology or some other contributing factor.

Now, however, they have gone too far.  It appears, based upon recent opinions by the courts (including the WCAB) that the courts will allow apportionment to a pre-existing genetic predisposition.  What does this mean?

Certainly, at its worst, it appears that if you are, let’s say, a 50 year old injured worker, a physician could not only assign you a 30 percent impairment, but the apportion (blame) a part on your degenerative (age-related) changes in your back, as well as the fact that you were pre-disposed to have back problems because your grandfather, father or mother had back problems also. Really?

The same could be true of psychiatric injuries.  Can you imagine?  Now an insurance lawyer could inquire as to whether your mother or father suffered from anxiety, stress or depression.  Whether they ever had counseling – marital, financial or otherwise, etc.  When does this stop?

If my clients are asked in a deposition, if their family members suffered from, for example, depression – I’m going to instruct my client not to answer.  Not only does this seem to be an improper inroad into a non-parties (i.e. family member) right to privacy, it is tantamount to asking my client is their family member was ever diagnosed with depression.  “Depression” is a diagnosis and what do my clients know about whether their family members stress actually progressed to a point that they were diagnosed with depression.

This, is just but one example.  Isn’t it enough that the law allows insurance companies to blame a portion of an injury on a previous underlying condition that was without symptoms and did not affect their job or their life in any way until they were injures on the job?  Now we are going to look at genetics. Really?  Someone has lost their mind.  Maybe it’s genetic!

Richard Irwin

Mr. Irwin is a recognized specialist in Workers’ Compensation law. He has been certified as a specialist by the State Bar of California since 1995. He limits his practice to handling only workers’ compensation cases. View Attorney Richard Irwin's Attorney Bio Here.

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