Apportionment Wins: Court of Appeal limits Hikida case
- May 28th, 2020
- Tom Richard
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On May 27th, the 6th District Court of Appeal published an important decision in the matter of County of Santa Clara v. WCAB (Justice), which narrowed the Hikida holding significantly. The case is a win for California employers. You can find a copy of the case here.
In Hikida, the 2nd District Court of Appeal disallowed apportionment to permanent disability (PD) despite medical evidence that non-industrial factors contributed to the claimed carpel tunnel syndrome (CTS). The applicant underwent approved surgery for the accepted CTS injury, which then led to complex regional pain syndrome (CRPS). The Hikida court disallowed the apportionment, however, reasoning that the CRPS caused the PD, and the CRPS was the result of the surgery, not the underlying CTS. Because medical treatment cannot be apportioned, the Court opined, neither can PD stemming from the treatment.
In some instances, Hikida led to the absurd result of WC Judges disallowing PD apportionment any time the employee happened to have surgery because of their injury.
The aptly-named Justice case rights this wrong, finding that Hikidia only precludes apportionment where the industrial treatment is the sole cause of the PD. The Court overturned the WC Judge and the WCAB. It ordered them to award 50% apportionment based on the AME’s finding that applicant’s preexisting knee arthritis contributed to the need for total knee replacements.
California Workers’ Compensation law often acts like a pendulum. First, the Legislature passes reform, such as stronger apportionment under Labor Code section 4663, and then the WCAB and sometimes the Courts limit the reach of that reform with creative decisions like Hikidia. The Justice case as well as the 1st Dist. Court of Appeal’s recent City of Petaluma v. WCAB (Lindh) case, may have swung the pendulum back in favor of more robust PD apportionment.