6th District Court of Appeal – Justice case places limits on Hikida re: apportionment By Clifford Weinberg

Jun 11, 2020

Dear Clients, Friends and Colleagues:

We continue to wish you, your families and loved ones the greatest of safety and the best of health, during these unprecedented times of adversity, challenge and uncertainty. We will make it through!

Right now, you are probably getting inundated by webinars, e-mails and other information laden communications, so we will keep this one brief.

On 5/27/20 the 6th District Court issued its decision in the case of County of Santa Clara vs. WCAB (Justice) with respect to the issue of authorized medical treatment and whether or not it is the sole cause of permanent disability. In this case, Ms. Justice suffered a specific injury to the knee superimposed upon significant underlying pre-existing degenerative joint disease. The injury “lit up” the pre-existing pathology and resulted in knee replacement surgery.

In Hikida (2017) applicant underwent carpal tunnel surgery which ultimately led to a diagnosis of CRPS. The 2nd District Court of Appeals held that when medical treatment causes permanent disability solely related to that treatment, there is no apportionment to other causation factors pursuant to Labor Code section 4663, including non-industrial factors.

In Justice, the trial court and the WCAB followed the Hikida rationale and found applicant’s permanent disability related to the total knee replacement was 100% industrially caused without regard to the mandates of Labor Code section 4663. The rationale was that the surgery was the sole cause of applicant’s present disability. The appellate court did not agree and held that Labor Code section 4663 requires an assessment of all causation factors which results in the permanent disability, and that in order for a Hikida scenario to apply it must be shown that the medical treatment is the sole cause of the disability. In that case the carpal tunnel surgery was found to be the sole cause of the resultant CRPS condition. In Justice the need for knee replacement surgery and the resulting permanent disability was due to many factors, notably including significant pre-existing pathology. In other words, it was not a “new” injury.

COMMENTS: We do not see much of these types of cases and it remains to be seen to what extent this issue will arise. But, I suspect in the Southern California boards, applicant attorneys will continue to rely on the 2nd District case of Hikida and argue that medical treatment related to an injury which increases it or results in a compensable consequence claim should be deemed 100% industrially caused. We will of course rely on the well written opinion in the Justice case, that apportionment is only precluded where the industrial medical treatment is the sole cause of the permanent disability.

Thanks, and be well.

Clifford Weinberg

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