May 29, 20200

Top 12 Initial COVID Claim Investigation Questions

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The case of Hikida v. WCAB (2017) 12 Cal. App. 5th 1249 looked, when it came down from the 2nd District Court of Appeal, to be a landmark case that could potentially upend years of case law on apportionment.  The court there decided that the employer had the responsibility to compensate for the consequence of industrial medical treatment without any apportionment.  In that case, the applicant had pre-existing nonindustrial conditions contributing to carpal tunnel syndrome.  However, due to her industrial injury, she required a surgery that left her with complex regional pain syndrome (CRPS), a new compensable consequence injury that left her significantly more disabled than she was prior to the industrial treatment.

Many applicant’s attorneys urged an expansive reading of Hikida, arguing that the case meant that any time permanent disability was measured by treatment necessary due to the industrial injury, apportionment to nonindustrial causes of disability that pre-existed the medical treatment could not be considered.  That is, they argued that the treatment, such as a standard knee replacement, essentially replaced any pre-existing conditions as the sole measure of disability such that pre-existing arthritis, degeneration, or even separate injuries could not be considered as sources of disability.  Many entrenched battles have been fought at the trial level, and many settlements based in part, on arguments over the scope of Hikida.

Now the 6th District Court of Appeal has issued a decision that limits the scope of Hikida.  In County of Santa Clara v. WCAB (Justice), the Court held that disability must still be apportioned to other factors under Labor Code 4663, even where the industrial injury caused the need for the surgery by which impairment was measured.  The Justice case (an either wonderfully appropriate or bitterly ironic name for the case depending on which side of the bar you speak to) involved a workers’ compensation claims adjuster who fell at work in 2011, suffering a meniscal tear in her left knee.  She later developed right knee problems, which were found to be a compensable consequence of the first injury in part.  The injured worker eventually underwent  bilateral total knee replacements within the two years following her industrial injury.

The AME, Dr. Anderson, opined that there was significant degeneration in both knees and that the fall at work caused the replacements to be necessary earlier than they might have otherwise been by “lighting up the underlying pathology.”  Dr. Anderson apportioned a full 50% of disability to nonindustrial pre-existing degeneration and indicated that absent the pre-existing arthritis, there would have not been the need for total knee replacements.

At trial, despite finding that the surgeries had been a success, the judge determined that applicant was entitled to an unapportioned award of 48% permanent disability.  The judge reasoned the holding in Hikida precluded apportionment where the disability arose from industrial treatment.  The Appeals Board affirmed upon petition for reconsideration.

The 6th District Court of Appeals, however, annulled the decision and distinguished Hikida.  The Court noted at the onset that the CRPS suffered by the applicant in Hikida was a new condition caused by the industrial treatment that was more disabling than the condition suffered by the applicant prior to the industrial treatment.  The Court noted the reasoning of Hikida was that the employer is required to pay for industrial medical treatment without apportionment but stated that “it does not follow that an employer is responsible for the consequences of medical treatment without apportionment when that consequence is permanent disability.”  The Court noted that there was no basis in the statutes or case law for the proposition that permanent disability following medical treatment is not subject to the general rule that apportionment of disability is based on causation and that employers are not liable for permanent disability caused by factors outside of the work injury.  The decision went on to further distinguish Hikida, noting that permanent disability in Justice was not caused entirely by the industrial medical treatment and noting that the treatment in Justice was successful, unlike the deleterious treatment in Hikida.

The Court here answered many important and unanswered questions about the scope of Hikida.  It confirmed that while medical treatment may not be apportioned, permanent disability is subject to apportionment even where that permanent disability is based on medical treatment made necessary by a workplace injury.  The Court explicitly rejected expansive readings of Hikida, stating that while “parts of the Hikida opinion can be read to announce a broader rule that there should be no apportionment when medical treatment increases or precedes permanent disability, it is clear that the rule is actually much narrower” (emphasis added).  The Court further stated that Hikida only precludes apportionment “where the industrial medical treatment is the sole cause of the permanent disability.”

This case can be read in connection with the Lindh case, which the Court discusses in Justice, to establish that underlying and even asymptomatic conditions can be the basis for apportionment if there is a medical opinion that those conditions contribute to the current level of disability in any given case.  In the rare case where industrial treatment is an intervening and sole cause of the disability, Hikida would still apply.

From a practice standpoint, if an employer is seeking apportionment in a case involving medical treatment that is used as a measure of impairment, such as a knee or hip replacement, they should seek from any medical-legal evaluator an opinion as to all factors, industrial and nonindustrial, causing the need for surgery.  The opinion, as always, has to be substantial evidence as to any apportionment findings, meaning the medical legal evaluator has to explain how nonindustrial factors cause or contribute to overall disability.  In Justice, the AME issued six reports and was deposed twice, which demonstrates the amount a record may need to be developed where apportionment is hotly disputed.  Overall, the Justice case seems a sound clarification of the law of apportionment, as it is very unlikely that the legislative intent behind Labor Code 4663 would have been served by precluding all apportionment for the relatively common category of injured workers requiring surgery due an industrial injury.


The DWC and the WCAB announced expanded operations effective 6/8/2020 as part of the ongoing efforts to balance public health during the coronavirus pandemic and the needs of parties to have their workers’ compensation matters heard.  All MSCs, Status Conferences, Priority Conferences, Case-in-Chief Trials, and Expedited Hearings will continue to be held telephonically via the Judges’ conferences lines per the earlier announcements of 4/28/2020, but now lien conferences will also be held telephonically as of 6/8/2020.  For the time being, only three lien conferences will be heard per judge per calendar session.  All lien trials will still be continued automatically for the time being and district offices will not hold in-person hearings of any sort for the time being.

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

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