California Applicants’ Attorneys Association Summer Convention 2012

Alan Gurvey  was featured on the panel "Using Apportionment as Swords" with WCAB Judge Honorable Lilla Rados

Attorney Alan Gurvey spoke at the California Applicants’ Attorneys Association (CAAA)  Summer Convention 2012 in San Francisco.  Mr. Gurvey explained to the attorneys and doctors in the audience that potential apportionment of causation of a workers’ compensation injury to a prior non-industrial or industrial injury does not necessarily diminish the value of a case.  In his animated talk, he provided a number of examples where his clients prevailed with high levels of disability, notwithstanding prior medical conditions and prior injuries.  Sharing the dais with Mr. Gurvey were colleagues Robert Taylor, Esq., Sarah Carr, Esq., and the Honorable Lilla Rados, Workers’ Compensation Appeals Board Judge.

Here is the outline from Alan Gurvey’s presentation Using Apportionment as Our Swords:

Using Apportionment as “Our Sword”:

“Et Tu, Brute”?

Alan Gurvey
Law Firm of Rowen Gurvey & Win

“IN TIME WE HATE THAT WHICH WE OFTEN FEAR.”
Act I, Scene III, Antony & Cleopatra, William Shakespeare

If we fear apportionment, it is more difficult to overcome. Moreover, while the concept of apportionment may not actually be a sword to be used by applicant attorneys, it isn’t necessarily the kiss of death either.

“I COME TO BURY CESAR, NOT TO PRAISE HIM.”
Act III, Scene II Julius Cesar, William Shakespeare

Apportionment can be overcome or avoided by focusing on a number of different strategies:

1. For total and permanent disability cases, Labor Code §4662 versus Labor Code §4660. (See Barbara Edwards v. Caltrans, ADJ3699701, ADJ624834).

 2. Focus on the loss of earning capacity related to the disability at issue (See Jesus Cordova v. Garaventa Enterprises; SCIF, ADJ3684884, ADJ55388).

 3. Defendant has the burden to prove overlap (See Ed Kopping v. WCAB (2006) 142 Cal. App. 4th 1099 [71 Cal. Comp. Cases 1229]; Shelley Moran v. Department of Youth Authority, SCIF, ADJ2192153, ADJ710643).

 4. Differentiating between regions of the body or conditions of the disability (See Ottoma Curry v. SCIF, ADJ4330842; the attached Report and Recommendation on Petition for Reconsideration; Virginia Sanchez v. County of Los Angeles (2005) 70 Cal. Comp. Cases 1440 and Jack Strong v. City and County of San Francisco, SFO0479038).

 5. Benson v. WCAB, (2009) 74 Cal. Comp. Cases 113: The effect of a doctor not being able to parcel out disability where there are multiple dates of injury (See attached Report and Recommendation on Petition for Reconsideration). Application of the Wilkinson doctrine (See Wilkinson v. WCAB (1977) 19 Cal. 3d. 491).

 6. Why does “inextricably intertwined” from a purely medical perspective make sense?

 7. When the defense pushes too far… (See excerpts from the attached doctor’s deposition transcript).

 8. The lighting up of a quiescent condition (See Barbara Sherman v. Los Angeles Unified School, ADJ1001518, ADJ2087652).