On December 10th, the First District Court of Appeal issued a long-awaited decision in City of Petaluma v WCAB (Lindh). In the published ruling, the Court reversed the decision of the WCAB which had held that the QME's opinion on apportionment under Labor Code Section 4663 was not legally valid and did not constitute substantial medical evidence.
Mr. Lindh worked as a peace officer with the City of Petaluma and sustained an industrial injury consisting of several blows to his head. One month after the injurious event, he lost most of the vision in his left eye. The QME in the case noted that the injured worker had an underlying vasospastic personality that affected his left optic nerve vessels. The doctor acknowledged that the injured worker did not have any disability in the eye prior to the industrial injury and likely would have retained a lot of his vision in the eye absent the injury. Nevertheless, the doctor apportioned 85 percent of the cause of his permanent disability to this previously quiescent underlying condition and 15 percent of the cause of the disability to the industrial injury.
Both the trial judge and the Appeals Board rejected the apportionment analysis and issued an un-apportioned award of 40 percent PD. The Board held that the QME impermissibly apportioned 85 percent of his permanent disability in the eye to a mere risk factor that predisposed him to having an eye injury. The Board held that the QME conflated the analysis of causation of injury with causation of permanent disability and found there was no legally valid basis for apportionment under LC Section 4663.
Applying the law on apportionment post SB-899 to this case, the Court held that the QME's opinion should be followed. The Court focused on the QME's testimony that it was unlikely that he would have suffered a vision loss (in light of his industrial injury) had he not had the underlying condition of vascular spasticity. The Court felt that the QME explained in-depth at his deposition that "but for" the underlying medical condition, the worker likely would not have lost his vision in the eye.
One small positive takeaway for injured workers is that it appears that a doctor identifying a non-industrial risk factor in and of itself likely is not enough to support a basis for apportionment of permanent disability. The doctor is still required to explain how that condition (even if characterized as a risk factor) is causing a portion of the resulting permanent disability.
CAAA will be examining ways to address this case and other recent rulings dealing with apportionment at our upcoming Winter Convention in January.
Editor's note: This post contains excerpts from a longer analysis. To view the article in its entirety, please click here.