"Being predisposed to something doesn’t mean that it will become a reality, unless medical science can show that, notwithstanding the industrial injury, Mr. Lindh still would have had this disability at that time and at that place, then, in my opinion, this is just another unfair knock against injured workers in favor of cost containment.” Alan Gurvey
The latest California appellate court decision finding asymptomatic, pre-existing conditions are fair game for apportionment should shield employers from paying for disabilities arising from nonindustrial causes, according to workers’ compensation defense attorneys.
On the applicants’ side, Monday’s decision by the 1st District Court of Appeals is seen as another case in which an injured worker got the short end of the stick in the name of cost containment.
The court remanded Aaron Lindh’s case to the Workers’ Compensation Appeals Board with instructions that it find 85% of the blindness in his left eye was not caused by work.
Lindh worked as a police officer for the City of Petaluma and suffered injuries when he was repeatedly struck in the head by police dogs during a training exercise in 2015. As a result of the blows, he lost vision in his left eye.
But a qualified medical evaluator said the head trauma caused only 15% of the disability. Lindh had a vascular condition that put him in a higher risk category to lose his eyesight, according to the QME.
A trial judge said the apportionment analysis did not constitute substantial evidence in finding Lindh had a 40% permanent disability. The WCAB affirmed in August 2017.
The 1st District Court of Appeal on Monday said the WCAB’s decision was based on case law that predates the apportionment statutes that were added as part of the reforms in Senate Bill 899. Before apportionment, employers were liable for the entire disability arising from the interaction between an industrial cause and a nonindustrial cause, even if the nonindustrial cause wouldn’t have caused the disability by itself.
In other words, employers were liable when a work injury aggravated a pre-existing condition.
“Under the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required,” the court said in Lindh. “Whether or not an asymptomatic, pre-existing condition that contributed to the disability would, alone, have inevitably become manifest and resulted in disability is immaterial.”
Work comp defense attorney William E. Davis, an associate partner at Mullen & Filippi’s office in Santa Rosa, said on Wednesday that he thinks the decision helps clarify apportionment. A key takeaway is the court saying nonindustrial causes of disability must be considered under current laws.
He said the idea that a condition has to manifest to be ripe for apportionment is wrong. An asymptomatic condition, by its very name, means a condition that is present but for which there aren’t any symptoms.
Whether conditions are manifest is irrelevant for the question of apportionment, he said. The question is simply whether there are industrial and nonindustrial causes, and if there are nonindustrial causes, apportionment is necessary.
Defense attorney Jacob “Jake” Jacobsmeyer, founding partner of Shaw, Jacobsmeyer, Crain & Claffey in Oakland, said the type of fact pattern presented in Lindh comes up fairly often, but attorneys weren’t sure how to deal with it.
“I think it’s something that’s going to have broad application,” he said. “I think it will make it easier to apportion to pathology.”
He said the court didn’t sign off on apportioning to risk factors a genetic predisposition or the suggestion that Lindh suffered a condition that might someday cause him to lose his vision. The court instead said Lindh had a vascular condition that the QME said was likely a major contributing factor to his disability.
Jacobsmeyer compared it to several conditions that are more common than the rare condition Lindh has.
High cholesterol is a risk factor for cardiovascular disease, he said. But a QME couldn’t apportion part of a claim for heart disease to the risk factor of having high cholesterol. However, if the cholesterol had caused plaque buildup and arterial hardening, that pathology would be fair game for apportionment.
Another example is that of a hypothetical worker with degenerative disc disease. If the person ends up a paraplegic after falling 50 feet, the pre-existing condition likely has no effect. The fall from 50 feet would be the cause of the disability.
But if that same person had a slip-and-fall injury and ended up paraplegic, it could be a different story, Jacobsmeyer said.
Alan Gurvey, managing partner of applicants’ firm Rowen, Gurvey and Win in Sherman Oaks, said he thinks the appellate court “missed the boat” with the Lindh decision.
“What is truly wrong with this decision is that it allows for speculation on apportionment, which should never be the case, since each individual injured worker should be treated as an individual and not grouped into a risk factor group, such as what the City of Jackson opened the door to,” he said.
In City of Jackson v. WCAB (Rice), the 3rd DCA allowed apportioning to a pre-existing genetic condition.
Gurvey said it was not a given that Lindh was going to lose vision in his eye, and he’s not aware of anything in the record establishing that the pre-existing condition caused any disability before the accident.
“Being predisposed to something doesn’t mean that it will become a reality,” he said. “Unless medical science can show that, notwithstanding the industrial injury, Mr. Lindh still would have had this disability at that time and at that place, then, in my opinion, this is just another unfair knock against injured workers in favor of cost containment.”
Gurvey said he believes employers shouldn’t be liable for injuries or disabilities caused by factors other than work. But in the case of Lindh, it doesn’t appear that he necessarily would have the disability that he does now.
At the same time, Gurvey said he thinks the Lindh decision was largely based on the specific facts in the case and, as a result, it will have only a limited reach.