Workers’ compensation litigation often is driven by disagreement over the apportionment of permanent disability. A vast body of case law exists reflecting the courts’ efforts to resolve conflicts between the provisions of the California Labor Code codifying protections for an employer from liability for permanent disability that does not arise out of an industrial injury, and the provisions that entitle an injured worker to receive compensation for all permanent impairment arising out of an industrial injury.
The Second Appellate District of the California Court of Appeal in Maureen Hikida v. WCAB, and Costco Wholesale Corporation, B279412, June 2017, deals with a common apportionment question: how to award permanent disability arising out of treatment of a condition that is in part non-industrial in origin. Ms. Hikida suffered carpal tunnel syndrome which was admitted to be 90% due to industrial repetitive trauma and 10% due to nonindustrial factors. As a result of surgery she underwent to treat the syndrome, she developed chronic regional pain syndrome (CRPS). This condition was extremely debilitating and she never returned to work. She sought an award of permanent total disability (100% disability) as a result of the CRPS and a psychiatric condition.
After trial she was found to be permanently partially disabled at 90% after apportionment to the 10% nonindustrial factors. The WCAB reviewed the decision and remanded the matter for additional trial on the effect of the claimed psychiatric injuries. After further briefing, the Workers’ Compensation Administrative Law Judge found that Ms. Hikida remained with a 98% permanent disability after apportionment. Upon review, the WCAB agreed and the Applicant petitioned for review by the Court of Appeal.
The court in Hikida provides an extensive review of the history of apportionment, noting that before 2004 the case law for the most part limited apportionment of permanent disability awards. It also found that 2004 legislation amended the Labor Code with the intention, as the California Supreme Court explained, to reverse the historical constraints on apportionment. The Hikida court noted that through the 2004 language of Labor Code Sections 4663 and 4664, the legislature intended to “usher in a ‘new regime of apportionment based on causation’ and a ‘new approach to apportionment’ that look[s] at the current disability and parcel[s] out its causative sources ….”
The Court of Appeal identified the issue in Hikida to be how to interpret the “new regime of apportionment” within the employer’s longstanding obligations to provide medical treatment without apportionment. When treatment for an industrial injury is not medically possible without treating a non-industrial condition, an employer must treat both under well-established interpretations of Labor Code §4600. The court additionally finds it to be important that an employer enjoys freedom from civil liability from negligent medical treatment for an industrial injury. The Court rationalized that since the employer’s obligation to treat cannot be apportioned, and the employer may not be civilly liable for negligent treatment, the permanent impairment arising from that treatment may, therefore, not be apportioned. The causes of the pathology requiring the treatment are ignored. It ordered the WCAB to reverse its decision.
In a separate part of the opinion, the Court disregarded the employer’s argument that the petition seeking review of WCAB opinion on apportionment was untimely. Costco argued that since no petition for review was filed following the first WCAB opinion upholding apportionment, it was untimely to wait for the second trial and WCAB decision. The appellate Court held that a petition for review may be filed only on a threshold issue of compensability or a final determination of the WCAB. The WCAB remanded the case for further trial on the issue of permanent disability making the issue of apportionment neither final nor a threshold issue of compensation.
The Court’s reversal of the WCAB finding of apportionment raises more questions than it resolves. The Hikida decision may lead to litigation about whether any apportionment of permanent disability is permitted if treatment contributes in any manner to the permanent impairment, such as through internal scarring. Further, the decision may be read as conflating the right to unapportionable treatment with apportionment of permanent impairment, creating unanticipated future consequences.
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