Your Claim Was Accepted and They’re Still Only Paying Half. Here’s Why.

Two sentences from an insurance adjuster. They sound almost identical.

“We’re denying your back claim, because the MRI shows degeneration and that comes from age, not from work.”

“We accepted your back claim, and now that you’re done treating, the doctor says 50% of your permanent disability comes from degeneration. So we’re only paying half.”

The first one is a causation fight. Lose it and you get nothing at all. What workers’ compensation defense attorneys like to call a Take Nothing. The second is apportionment, which surfaces years later on a claim nobody ever disputed, and what’s at stake there is how much of your permanent disability actually gets paid.

I keep raising this with clients because I’ve seen how confusing it can be when a doctor says, “a lot of this is degenerative.” Clients can understandably hear that and assume it means their injury isn’t significant or that their case has no merit. I want to help clear up that confusion, because pre-existing issues do not mean the end of your case.

Causation: is this injury covered at all?

Causation is the first issue of any workers’ compensation claim. Is this injury work related or not. All benefits from temporary disability to medical treatment, turn on the answer to this question.

The good news for injured workers is that the bar is lower than most people assume. California doesn’t ask whether work was the main cause of your injury, or even a large one. It doesn’t ask if your employer was negligent. It doesn’t care if your employer was at fault. It simply asks whether work contributed. If your job was one of the causes, even by the smallest fraction, the injury is industrial and the employer owns it.

So when an adjuster tells you that the arthritis in your shoulder means the claim isn’t work related, that’s not actually what the law says. Putting heavy boxes onto a shelf above your head, day in and day out lit that shoulder up. A nurse who spends years lifting and transferring patients, can aggravate degenerative changes in her back. Years of driving, loading, and climbing into and out of a cab can make a truck driver’s spine worse. Work caused these injuries. And old age or wear and tear getting there first doesn’t erase it.

Apportionment: how much of the permanent disability gets paid

This one arrives near the end of your claim and only on a claim that’s been accepted.

Once your doctor declares you permanent and stationary, meaning you’re as good as you’re going to get, they assign a permanent disability rating. California law then makes that same doctor answer a second question. How much of this permanent disability came from the work injury, and how much came from somewhere else?

Somewhere else covers a lot of ground. A prior work injury. A car accident in 2011. Arthritis, degenerative disc disease, diabetes, obesity. California appellate courts have gone as far as allowing apportionment to your genetics, which stops most people cold the first time they hear it.

Whatever percentage lands in that other column simply comes off your award. No second insurance company picks it up, and there is no check from another source waiting somewhere for the rest, so that money is gone.

Say you hurt your low back at work and your final rating comes in at 20 percent permanent disability. The doctor writes that half of it stems from preexisting degenerative changes. You get paid on 10 percent. Nothing about your claim or your injury changed between those two numbers.

So which fight are you in?

Look at whether your claim was accepted. If it was denied, you’re arguing causation, and the question is whether you get benefits at all. Accepted, with a permanent and stationary report sitting in your file? Then you’re arguing apportionment, and the question is how much.

A case can sail through causation without a single objection and still shed half its value at the apportionment stage. Ugly apportionment on paper doesn’t render a case worthless either, because apportionment reaches only one piece of what you’re owed.

Apportionment only touches permanent disability

Adjusters rarely volunteer this one.

Apportionment applies to permanent disability. Temporary disability and medical treatment are not apportionable. Meaning you can still get the full value of these.If a doctor writes that your knee disability is 60 percent nonindustrial, the employer still pays for the entire knee surgery, not 40 percent of it. Owed temporary disability while you’re off work? You get the whole check. Anybody telling you different has earned a phone call to an attorney.

The defense has to prove apportionment

A report that says “50 percent industrial, 50 percent nonindustrial” and stops there isn’t worth much. California law gives the insurance company the burden of proving how much apportionment there is. Percentages with no reasoning behind them can get thrown out by a judge. A weak apportionment opinion can be attacked with a supplemental report, a deposition of the doctor, or litigation in front of a judge. Which is why if you find that your final report includes a significant amount of non industrial apportionment, it is important to seek the counsel of an experienced workers’ compensation attorney.

What to do with this

When you have your qualified medical evaluation, be honest with your history. Hiding your prior issues will hurt you more than disclosing it. Once the report is prepared, read the apportionment section. It is usually near the end. Did the doctor give any reasoning, or just drop a number on the page?

Ask your attorney what the apportionment is costing you in dollars. Any of us should be able to run your rating both ways, with the apportionment and without, and hand you the difference in real money.

The bottom line

Causation and apportionment get asked at two different stages of your case, and clearing the first doesn’t protect you from the second. A rough answer on the second doesn’t mean the case was never worth anything.

Apportionment is where a lot of value quietly leaks out of workers’ comp cases, usually inside a paragraph nobody reads carefully. It’s also among the most attackable things in the entire system, because the standard the law sets sits higher than what plenty of medical reports actually deliver.

If a doctor in your case put apportioned your permanent disability, and you can’t tell where the number came from, bring me the report and we’ll go through it together.

Causation lives in Labor Code section 3600, apportionment in sections 4663 and 4664, if you’d like to read them yourself.

Ryan D. Kayrell is a workers’ compensation attorney in Irvine, California, representing injured workers throughout Southern California. If you have questions about your claim, you can reach his office at (949) 873-2868.

This article is general information about California workers’ compensation and is not legal advice for your specific situation.

Causation vs. Apportionment