2nd DCA to Clarify Apportionment of Worker's Permanent Disability

Published on 4/05/2017 by WorkCompCentral

The California 2nd District Court of Appeal will be weighing in on the appropriate standard for addressing the causation of a worker's disability. Twelve years ago, the Workers' Compensation Appeals Board put out an en banc decision in Escobedo v. CNA Insurance that established a rule that apportionment must be based on the causation of the worker's disability, not the cause of the injury that led to the disability.

Maureen Hikida is arguing that the WCAB misapplied the rule from Escobedo in her case.

Hikida had worked as an auditor for the Costco Wholesale Corp. for more than 25 years. She claims she suffered cumulative trauma injuries resulting in carpal tunnel syndrome, among other conditions.

Hikida then developed chronic regional pain syndrome after undergoing carpal tunnel surgery and now has severely limited dexterity in her hands.

In June 2015, Administrative Law Judge M. Victor Bushin found Hikida was disabled by her CRPS, and that the CRPS had been caused by the surgery she had undergone to treat her carpal tunnel syndrome.

Bushin determined that Hikida's carpal tunnel syndrome was caused by a combination of her work activities and non-work activities, and 90% of the cause was her work. He apportioned Hikida's permanent disability as being 90% industrial, 10% non-industrial.

Hikida petitioned the Workers' Compensation Appeals Board for review.

Last February, a WCAB panel rescinded Bushin's order and sent the case back to the judge to determine whether Hikida's claimed psyche condition had contributed to her level of permanent disability. It also directed Bushin to consider any other industrial causes of Hikida's disability.

Commissioner Marguerite Sweeney dissented, saying apportionment was improper because 100% of Hikida's total disability was from her CRPS, and her CRPS had been caused by the treatment of an industrial injury.

On remand, Bushin issued findings that Hikida had a 98% permanent disability.

A WCAB panel upheld that decision October, but Sweeney once more dissented because she said she remained convinced that apportionment was inappropriate.

Hikida petitioned the 2nd DCA for review in December, arguing that the WCAB had misapplied the rule from Escobedo.

In her writ petition, Hikida noted that the WCAB's en banc decision in Escobedo acknowledged "the percentage to which an applicants' injury is causally related to his or her employment is not necessarily the same percentage to which an applicant's permanent disability is causally related to his or her injury."

Thus, pursuant to Escobedo, "there must be medical evidence indicating other causal factors are contributing to the injured worker's permanent disability" for there to be an apportionment of disability, Hikida contended.

In her case, Hikida emphasized that the agreed medical evaluator and the panel qualified medical evaluator both agreed that her CRPS was totally disabling.

Since her CRPS resulted from the treatment she had received for an industrial injury, Hikida insisted she was entitled to compensation for the disability caused by her condition, without any apportionment.

Costco countered that the Labor Code requires permanent disability to be apportioned based on the level of disability "directly caused by the injury arising out of and occurring in the course of employment."

It also argued that there is no authority for the idea that the apportionment and causation of a continuous trauma injury "is negated as a result of the treatment causing further and additional disability."

The 2nd DCA granted Hikida's petition for review in February. It has scheduled oral argument for June 15.

On Monday, the court also accepted an amicus brief by California Applicants' Attorneys Association arguing that Hikida should have received an award of permanent total disability benefits.

The author of the brief, attorney Justin Sonnicksen, said Tuesday that CAAA "wanted to serve as amicus on this case because it deals with a crucial issue that is frequently litigated at the board," namely, "whether apportionment of permanent disability is appropriate when the resulting disability arises solely as a consequence of industrially related medical treatment." 

The Hikida case also presents an opportunity for the court to address "the defense burden of proof on apportionment and how a doctor’s apportionment opinion impacts vocational evidence," Sonnicksen added.

Sonnicksen said he was hoping the court's ruling will provide "guidance on these issues in a manner that ensures that injured workers don't receive permanent disability awards that are arbitrarily reduced by apportionment opinions that do not meet the correct legal standard."

Alan Gurvey and Sylvia Joo of the Law Office of Rowen, Gurvey & Win are representing Hikida.

Gurvey said he was pleased the court has agreed to hear the case and that it "recognized the important legal issues that need to be clarified."

Jay Cohen of Mullen & Filippi is representing Costco. He could not be reached for comment on Tuesday.