For many years now, employers have been able to rely on the holdings on Brodie v. WCAB (2007) 40 Cal. 4th 1313 and Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 75 Cal.Comp.Cases 113, 2009 Cal. Wrk. Comp. LEXIS 17 to ensure that non-industrial factors would be fully considered where permanent disability is awarded as consequence of industrial injury. Brodie, in particular, ruled that such apportionment would carry through even when disability was assigned due to aggravation and the compensable consequences of an injury.
In 2017, however, the case of Hikida v Workers’ Comp. Appeals Bd., (2017) 12 Cal.App.5th 1249 made its way up to the Second District Court of Appeals, and seems to challenge the manner in which apportionment is utilized in such cases.
Maureen Hikida was a clerical employee of Costco who last worked for her employer in 2010, when she underwent carpal tunnel surgery. Unfortunately, the carpal tunnel surgery was a failure, and resulted in her developing Chronic Regional Pain Syndrome (CPRS), causing debilitating pain in her upper extremities and essentially precluding her from maintaining gainful employment. Hikida was examined by Chester Hasday, MD, and found to be permanently and totally disabled due to this condition. Dr. Hasday apportioned 90% of Applicant’s carpal tunnel syndrome to industrial factors, and 10% to non-industrial factors.
After receiving an award which indicated that, per Dr. Hasday’s apportionment, she was entitled to 90% permanent disability, Applicant appealed, arguing that her disability was a result of the medical treatment she had received, and therefore no longer apportionable per Labor Code §§4663 and 4664. This argument made its way to the Appeals Board, where a 2-to-1 decision upheld apportionment predicated on Brodie, and confirmed the WCJ’s findings.
Applicant first appealed the determination based on psychiatric injury, and her award was subsequently increased to 98%. More significantly, Applicant filed a Writ with the Court of Appeal regarding the assertion of apportionment. The Court first seemingly confirmed an understanding of apportionment predicated on Benson and Brodie – that apportionment was predicated on the causation of the injury.
Where the Hikida ruling seems to have changed the ground rules for apportionment followed. The Court of Appeal ruled that Hikida’s disability was caused not by the factors that led her to suffer from carpal tunnel syndrome, but rather as caused by the CPRS that had resulted from the failed carpal tunnel surgery. Because employers are responsible for all medical treatment necessitated in any part by industrial injury, the Court ruled that the consequences of such treatment, where they led to further disability, are not apportionable, as deriving from the treatment rather than the underlying condition.
This Pandora’s Box leads to a significant concern for employers moving forward. The concept that employers are liable for treatment for which industrial causes contributed to the disability without apportionment has long been understood; the Court of Appeal points out this is to ensure that an Applicant will not forego treatment out of concern for being held liable for a portion of the cost, citing to Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406 (Granado), and further points out that an Applicant would have no cause for negligence against the employer in a situation where their disability is worsened after undergoing treatment.
The revelation of Hikida, however, is the Court’s determination that it is “the employer’s responsibility to compensate for the medical treatment and the consequences of medical treatment without apportionment” (emphasis mine).
Such a ruling, which has not largely been tested in the subsequent year, has the potential to create a wide variety of problematic issues for employers in a workers’ compensation setting, as it seems to place an onus on the employer to ensure the quality of treatment at a level beyond what is generally anticipated by the Labor Code. Hikida expands the potential for liability not just to the compensable consequences of injury, but to the compensable consequences of treatment for an injury.
Employers will now want to ensure that medical/legal evaluators are extremely specific as to the cause of an Applicant’s disability, as causation to job duties is subject to apportionment, where causation as a result of treatment will no longer be. Significantly, this calls into question treatment results such as opioid dependence and surgical complications, while providing an avenue for applicants’ attorneys to argue against apportionment.
Certainly, this ruling makes it vital that once a claim is accepted, insurers are sure to stock their MPNs with quality physicians, as paying slightly more for treatment may end up saving a great deal in potential apportionment. Insurers will also want to ensure that their defense attorneys are familiar with this crucial distinction, and include language in their advocacy letters which prompt evaluators to highlight this key factor. Ideally, the Hikida ruling will not affect a great deal of cases, as the ruling only affects those instances where medical treatment makes an applicant’s condition worse. Nonetheless, understanding of such nuances may play a key role in cases with significant impairment going forward. Defense attorneys will need to be prepared to anticipate and react to such arguments.
Ben G. Goldstein is an associate attorney in Bradford & Barthel’s Los Angeles office. He experience has exclusively focused on workers’ compensation defense. Mr. Goldstein can be reached at firstname.lastname@example.org or (310) 981-5004.