COURT OF APPEAL NARROWS APPLICATION OF HIKIDA

GMK ALERT – Today’s News You Can Use

ISSUE DATE:  Friday, June 19, 2020

IN THIS ALERT: COURT OF APPEAL NARROWS APPLICATION OF HIKIDA

The Sixth Appellate District recently ruled in County of Santa Clara v. WCAB (Justice) that defendants are entitled to non-industrial apportionment of permanent disability due to total knee replacements, thus limiting the prior holding of Hikida.  

In Justice, the injured worker fell at work, injuring her left knee and suffering a compensable consequence to her right knee.  She eventually required bilateral total knee replacements. The parties agreed to an AME, who testified that while the fall itself did not necessitate the bilateral knee replacement surgery, it hastened the need for the surgery to be performed. He apportioned 50 percent of the disability to her pre-existing degenerative condition, and 50 percent to her fall at work. 

In the Findings and Award, the WCJ held that apportionment under Labor Code § 4663 was improper. The WCJ applied Hikida v. WCAB (2017) 12 Cal. App. 5th 1249, holding that permanent disability may not be apportioned where medical treatment (here, a bilateral knee replacement) results in increased disability. The WCJ issued a 48% permanent disability award without apportionment. 

The WCAB upheld the Trial Judge’s opinion and the case was appealed to the California Court of Appeal. The Court rejected the WCJ’s application of Hikida and held that apportionment was proper. 

The Court narrowly interpreted the rule in Hikida, holding that non-industrial apportionment is barred only where industrial medical treatment results in a new compensable consequential injury (as in Hikida, failed carpal tunnel surgery resulting in CRPS) and not in all cases where the consequence of medical treatment is permanent disability. In Justice, the total knee replacement did not lead to an unexpected compensable consequence, but rather went well and improved the injured workers’ condition. Any disability was due in part to her pre-existing condition and in part to her fall.

Accordingly, the Court annulled the WCJ’s decision and remanded the case with instructions to award permanent disability with 50 percent apportionment to non-industrial causes. 

WHAT THIS MEANS FOR YOU

This decision narrows the impact of Hikida by clarifying the factual scenario where Hikida applies to preclude apportionment. In cases were surgery or medical treatment increase the permanent disability rating but is not the sole cause of a new compensable consequence injury, the injury may still be apportioned. 

Jessica Tyndall, Esq. - San Luis Obispo

Daniel Cadia, Esq. - Woodland Hills