HIKIDA vs. WCAB
(ORAL ARGUMENT 6-15-17- CERTIFIED PUBLISHED OPINION ISSUED 6-23-17)
By William A. Herreras , co-chair of the California Applicant Attorney’s (CAAA) amicus committee and a past-president of CAAA.
Applicant’s attorney: Alan Gurvey of Rowan, Gurvey & Win (Van Nuys)
Amicus curiae on behalf of CAAA: Justin Sonnicksen of Gearheart & Sonnicksen (Pleasant Hill)
Members of the Amicus Committee participating in Moot court preparation and attendance at the hearing: co-chair Joe Capurro, co-chair William A. Herreras , Bernie Baltaxe, and Justin Sonnicksen.
For those who represent injured workers this case changes the “apportionment” landscape and is a giant step forward. Now injured workers are entitled to full compensation when their disabilities are caused by their medical treatment from their work injures. Moreover Hikida may be extended to cover disabilities caused by a lack of medical treatment.
On the other side, employers and insurance carriers will view this case as the economic sky falling, a giant step back from the 2004 changes in “apportionment.” (Labor Code §§4663 & 4664)
But all must agree Hikida is a landmark case that deserves equal recognition as LeBouef, Wilkinson, Brodie and Benson.
“APPORTIONMENT” UNDER THE CHANGES IN 2004 (SB899) MUST BE BASED UPON THE PERCENTAGE OF CAUSATION TO PERMANENT DISABILITY NOT INJURY – IF THE DISABILITY IS CAUSED BY THE MEDICAL TREATMENT FOR THE INJURY THE INJURED WORKER IS ENTITLED TO AN UNAPPORTIONED AWARD.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Hikida, a 16 year clerical employee of Costco, developed carpal tunnel syndrome. Surgery went poorly, and she developed a painful and debilitating post-surgical condition known as chronic regional pain syndrome, or CRPS.
The Agreed Medical Evaluator (AME) found that her carpal tunnel condition was industrial and that she was permanently and totally disabled. The AME concluded that 90% of causation to the carpal tunnel condition was caused by the applicant’s work and 10% was caused by nonindustrial activities.
However, during deposition the AME concluded that the cause of the CRPS was the result of the unsuccessful medical treatment for the carpal tunnel condition. And the CPRS was the cause of the applicant’s total disability, 100%.
Therefore, the medical evidence at trial demonstrated that the cause of the applicant’s 100% disability was based upon the results of the medical treatment for a carpal tunnel condition that was unsuccessful and resulted in a complex regional pain syndrome (CRPS).
The trial judge, awarded 100% permanent disability, but apportioned 90% to industrial causation and 10% to nonindustrial causation, i.e. the same apportionment for causation of the injury. The applicant sought reconsideration arguing that the apportionment was unlawful and that disability should consist of 100%, without apportionment. The applicant claimed that the Board erroneously applied apportionment to causation to injury rather than causation to disability. In addition, the applicant argued that the vocational evidence justified a 100% disability award because the applicant’s vocational expert concluded that that were no nonindustrial causes for the applicant’s total loss of earning capacity. Applicant also argued that Labor Code §4662 applied because the applicant suffered “loss of the use of her hands.” Therefore, pursuant to §4662, the applicant was entitled to a presumed 100% award without apportionment.
The Board concluded that the apportionment was lawful but remanded the matter back to the trial judge to evaluate the psychiatric disability and determine whether the overall disability increased the applicant’s permanent disability. The Board also concluded that the applicant’s vocational expert failed to discuss apportionment and therefore that opinion did not constitute substantial evidence. The Board ignored the §4662 argument.
Commissioner Sweeney dissented, agreeing with the applicant, that the trial judge erroneously applied causation to injury rather than to permanent disability, citing among other cases, Fitzpatrick vs. Fidelity & Casualty Co. (1936) 7 Cal 2nd 230, 233-234 et. Al.
Following remand, the judge added the psychiatric disability which resulted in a 96% permanent disability but continued to apportion to non- industrial factors.
The applicant sought reconsideration a 2nd time.
The majority of the WCAB commissioners again pointed out that the Board previously ruled on reconsideration that the apportionment of 90% to industrial causation and 10% to non-industrial causation was determined adverse to the applicant. The Board again affirmed its finding that the apportionment was lawful. Commissioner Sweeney, dissenting again, argued that the cause of the disability was the surgical procedure and not the injury. Therefore the applicant was totally disabled and was entitled to an un-apportioned 100% award.
The applicant sought review by a petition for writ of review with the Court of Appeal, Second Appellate District. Applicant asserted that the apportionment was unlawful and that the Board apportioned causation to injury rather than causation to disability. In addition, the vocational evidence established that the applicant was 100% disabled and there were no nonindustrial factors. Moreover under Labor Code §4662, “loss of use of hands” justified an unapportioned award. The defense argued that the Board was correct and that the court should follow the apportionment issued by the majority opinion, that the causation of injury is consistent with causation of disability.
Two days before the scheduled oral argument the parties settled the case. Appellate courts often dismiss appeals as moot if the parties settle before oral argument. But in this case the Court considered the issues presented of substantial importance to the workers’ compensation community and proceeded to hear oral argument and ultimately issued a decision.
COURT OF APPEAL DISCUSSION ON APPORTIONMENT
It was undisputed by the parties that the applicant is 100% totally disabled.
In holding that the disability caused by the medical treatment should not be apportioned the court stated:
“Here, there is no dispute that the disabling carpal tunnel syndrome from which petitioner suffered was largely the result of her many years of clerical employment with Costco. It followed that Costco was required to provide medical treatment to resolve the problem, without apportionment. The surgery went badly, leaving appellant with a far more disabling condition — CRPS — that will never be alleviated. California workers’ compensation law relieves Costco of liability for any negligence in the provision of the medical treatment that led to petitioner’s CRPS. It does not relieve Costco of the obligation to compensate petitioner for this disability without apportionment.
Our review of the authorities convinces us that in enacting the “new regime of apportionment based on causation,” the Legislature did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.”
The Court decided that the Board committed error by apportioning the disability based on injury rather than disability. According to the Court, the cause of the disability was a result of the medical treatment and therefore the disability should be unapportioned, citing Escobedo vs. Marshals, en banc. (causation of injury may be different than causation of disability)
The Court also relied on Granado vs. WCAB (1968) 60 Cal 2d 399, 405-406 that held medical treatment is not subject to apportionment. In addition the Court cited Steinkamp v. City of Concord (March 30, 2006) 2006 Cal Work Comp PD LEXIS 24 where the injured worker was entitled to an unapportioned award for a joint replacement despite apportionment to injury.
This case, in large part changes the landscape of “apportionment.” Injured workers are entitled to full compensation for their permanent disability that is caused by industrial medical treatment. Thus the diabetic is entitled to an unapportioned award for an amputation. Likewise those who undergo joint replacements are entitled to an unapportioned award based on the results of the surgery.
An extension of Hikida involves disabilities that are enhanced by the denial of medical treatment as the result of UR and IMR decisions.
If the disability increases as a result of a denial of physical therapy or surgery should the worker be compensated for his or her increased disability caused by a lack of treatment?
Will it apply in situations where a claimant has become opioid dependent as a result of as a result of delays in medical treatment, including denial of other treatment modalities?
According to a logical extension of Hikida the answer is yes.
Defendant Costco will undoubtedly ask the California Supreme Court to review the decision.
In the meantime, the California workers’ comp community should become familiar with this case.