December 11, 20180

William Davis, an Associate Partner in our Santa Rosa office, yesterday obtained a very significant First District Court of Appeal ruling that further establishes that after the 2004 changes to the laws regarding apportionment, asymptomatic conditions and nonindustrial latent pathologies can be causative of disability.  The Court of Appeal annulled a WCAB opinion and decision after reconsideration that had rejected nonindustrial causation of disability and the Court stated conclusively that apportionment must be assigned to asymptomatic conditions under Labor Code 4663 where they are causative of disability.

Summary of City of Petaluma v. WCAB (Lindh)

In the case of City of Petaluma v. WCAB (Lindh), which has been certified for publication, the injured worker was a safety officer who was struck in the head by a dog during a training exercise.  After the initial injury he began to develop headaches and then, over a month after the blows to the head, while he was off-duty, Mr. Lindh lost most of the vision in his left eye.  Mr. Lindh was evaluated by two physicians, at Kaiser and UCSF, respectively, who both found that applicant suffered a left central vein occlusion and retinal artery occlusion of the left eye.  Neither physician reported that the vision loss was related to the blows to applicant’s head.

The QME in the matter, Dr. David Kaye, agreed with the prior physicians that applicant’s blood circulation to his left eye was defective.  He noted applicant had a vasospastic body type that made him susceptible to the loss of vision suffered.  Dr. Kaye stated that absent the injury Mr. Lindh may have retained a lot of vision in his eye.  Dr. Kaye also reported, however, the possibility that applicant could still have lost his vision due to the underlying condition even in the absence of the industrial incident.  Ultimately, Dr. Kaye apportioned 85% of applicant’s permanent disability to the applicant’s underlying vasospastic condition.

The case went to trial, with the parties stipulating that without apportionment permanent disability rated to 40% and to 6% with the apportionment assigned by Dr. Kaye.  The WCJ rejected the QME’s opinion on apportionment and found that it was not substantial evidence.  On Petition for Reconsideration, the WCAB upheld the WCJ’s decision.  The WCAB stated that the vasospastic condition was a mere risk factor for the blindness, but that the actual injury and resultant disability were caused “entirely” by industrial factors.  The WCAB stated that the QME had confused causation of injury with causation of disability.

The Court of Appeal reviewed the WCAB’s statement on the law regarding apportionment de novo and provided a thorough summary of the 2004 amendments to the apportionment laws and the case law interpreting apportionment since.  The Court established that apportionment based on causation was prohibited prior to 2004, citing the Brodie case.  If an industrial injury exacerbated or aggravated a pre-existing condition prior to 2004, the employer was liable for all of the resulting disability.  The Court stated, however, that SB 899 resulted in Labor Code 4663 and required medical legal evaluators to address all causative sources of permanent disability.  The Court noted that major cases such as Escobedo established that pathology and pre-existing asymptomatic conditions are now to be considered in addressing apportionment.  The Court noted that previously the WCAB could only apportion disability in those cases where part of the disability would have resulted, in the absence of the industrial injury, from the normal progress of the pre-existing disease.  The Court cited the E.L. Yeager, City of Jackson (Rice) and Acme Steel case as examples of the proper apportionment analysis.  Those cases all procedurally involved the WCAB  rejecting apportionment to pre-existing factors and being overturned by the Court of Appeals.  The Court focused on Jackson in particular.  In that case the WCAB had indicated that apportioning causation on the basis of a genetic condition opened the door to apportionment of disability to impermissible immutable factors.  The Jackson Court rejected that analysis and pointed out that “[p]recluding apportionment based on impermissible immutable factors would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited disposition.”

In addressing the WCAB’s finding that Dr. Kaye’s opinion was not substantial evidence in the instant case, the Court disposed of arguments by Lindh that were similar to those made in the above-cited cases.  The Court found that Dr. Kaye was able in testimony to distinguish between causation of injury and causation of disability and in fact stated at deposition that his analysis for causation of injury and causation of disability would be the same in this particular case.  The Court further stated that the decision in Escobedo stated accurately that while causation of injury and causation of disability are separate inquiries, the percentage by which industrial and nonindustrial factors caused injury and disability could be the same in some cases.  The Court rejected briefed and oral arguments by Lindh and CAAA that only degenerative conditions that would have resulted in disability without later industrial injury can serve as the basis for apportionment as restating the pre-2004 law on apportionment.  The takeaway statement of the law from the Court in this case was when they stated “[u]nder the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required.  Whether or not an asymptomatic preexisting condition that contributed to the disability would, alone, have inevitably become manifest and resulted in disability, is immaterial.”

Comments and Conclusions

This case is yet another recent case suggesting that if there is substantial medical evidence from a medical legal evaluator that establishes that even a latent or asymptomatic condition that may never have resulted in disability alone nevertheless contributes to disability in connection with an industrial injury, then apportionment must be assigned to that causative source of disability.  The Lindh case can be interpreted to mandate for apportionment in cases involving respiratory, cardiac, or other internal medicine conditions that increase disability in connection with an industrial injury, even if they were not symptomatic prior to the industrial injury, and even if they may not have ever become symptomatic without industrial injury.  This case may also limit overly expansive readings of the Hikida case, which was being interpreted by many attorneys for injured workers to mean that apportionment is not appropriate in the case of impairment caused by joint-replacements, even where an underlying degenerative condition contributed to the need for the joint replacement.

Congratulations are owed to William Davis, who provided excellent representation, thoroughly researched the issue, prepared compelling briefs and deftly presented his case at oral argument.  Mr. Davis engaged in extensive preparation for the oral arguments, including a moot court practice run and it showed, as his succinct statement of the law on apportionment after 2004 was largely adopted by the Court of Appeal in their ruling. 

A link to the full case can be found here:  www.courts.ca.gov/opinions/documents/A153811.DOCX

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.

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