A May 27, 2020 California Court of Appeal case, County of Santa Clara v. WCAB (Barbara Justice), limits the application of the “Hikida doctrine”.
What is Hikida?
Hikida v. WCAB (2017) 82 CCC 679 was a case where the injured worker, a Costco employee, had surgery for an industrial carpal tunnel syndrome and then developed CPRS as a reaction to the surgery. Before the surgery the AME had determined that 10% of the disability was non-industrial. After the surgery, the AME's re-eval found that Hikida was permanently totally disabled as the sole result of the CPRS. In doing so, the AME indicated that Hikida's PD was directly and entirely due to the CPRS.
Nevertheless, the trial judge apportioned 10% to non-industrial, and the apportionment was upheld by the WCAB on recon. The Court of Appeal reversed, ruling that Hikida was entitled to an unapportioned award in light of the AME's opinion that all of the PD was directly and entirely related to the CPRS, not the underlying carpal tunnel.
Hikida was cause for much celebration among the applicant's bar. Many attorneys and evaluators have made arguments citing Hikida as to why there should be no apportionment where disability is associated with medical treatment.
In 2019 defense attorney Raymond Correio (a former WCJ himself) prepared an excellent article on the post-Hikida case law. Correio's article, “California: Medical Treatment and Apportionment Two Tears Down the Road: Assessing the WCAB's Interpretation and Application of Hikida“, was posted on the LexisNexis Legal NewsRoom site and can be found here:
Correio noted that in the two years after the Hikida case came down, there were mixed results where applicants attempted to utilize the doctrine. WCAB panel decisions which found applicant entitled to an unapportioned award often involved failed surgeries such as the following:
fusion causing a disabling deep vein thrombosis (Estrada v. Edge Sales 2018 Cal.Wrk.Comp.P.D.LEXIS 451)
spinal cord stimulator implant caused hematoma, paralysis, loss of bladder control (Mills v. American Medical Response 2019 Cal.Wrk.Comp. P.D. LEXIS 84)
failed back syndrome diagnosis after repeated back surgeries (McFarland v. Charles Abbott Associates 2019 Cal.Wrk. Comp. P.D. LEXIS 209)
But Correio noted that there were a number of cases between 2017 and 2019 where the WCAB rejected arguments advanced that Hikida would apply to result in an unapportioned award.
Until 2020, there has been no post-Hikida guidance from the California Court of Appeal.
Now we have guidance from the 6th DCA out of San Jose in the Barbara Justice case.
Barbara Justice was a workers' comp claims examiner for Santa Clara County. She fell at work, injuring her left knee. Injury to the right knee was found as a compensable consequence of the left knee injury.
X-rays of the knees were taken six days after the injurious fall at work. The X-rays revealed “marked osteoarthritis”. An MRI done a month after the injury revealed medial and lateral meniscus tears, but also degeneration and an old anterior cruciate tear and loss of cartilage in the knee.
Ms. Justice had a total knee replacement on done on both knees, covered by workers' comp.
The AME prepared an initial report and five supplementals, and was deposed twice. The AME's apportionment determination was that half of the disability was non-industrial as a result of pre-existing degeneration.
Although noting in his decision that the bilateral total knee surgeries seemed to have been quite successful and that he believed the AME's apportionment was “sound”, WCJ Lauerman decided that Hikida precluded apportionment, stating that “Hikida holds that where medical treatment (here the bilateral knee replacement surgery) results in an increase in permanent disability, permanent disability should be awarded without apportionment“.
The defendant's petition for reconsideration to the WCAB was unsuccessful, and defendant filed a petition for review with the Court of Appeal.
But Santa Clara County prevailed at the Court of Appeal, which annulled the WCAB decision and remanded to the WCAB “with directions to make an award apportioning Justice's permanent disability 50 percent to nonindustrial factors and 50 percent to her industrial injury“.
According to the 6th District, Hikida can be distinguished as follows:
“the Hikida court's conclusion that there should be no apportionment makes sense only because the medical treatment in Hikida resulted in a new compensable consequential injury, namely CPRS, which was entirely the result of the industrial medical treatment. It was this new compensable consequential injury that, in turn, led entirely to the injured worker's permanent disability. ……Although 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. Put differently, Hikida precludes apportionment only where industrial medical treatment is the sole cause of the permanent disability.
“In contrast to Hikida, the permanent disability in this case was not caused entirely by the industrial medical treatment. The medical treatment did not result in a new, unexpected compensable consequential injury. Rather, the surgery was “quire successful” and it “significantly increased” Justice's “ability to walk and engage in weight -bearing activities”.
So the “Hikida doctrine” does have its limits.
Nevertheless, one can imagine many situations where it might apply, often in seriously disabling situations. For example, post surgical strokes and infections or compensable consequence falls.
However, the Justice case makes it clear that the results of treatment alone are not necessarily enough to defeat the current apportionment analysis requirement under Labor Code 4663 and Labor Code 4664. As with so many legal issues, over time we will likely see further cases on these issues, particularly since many of the Hikida apportionment issues are heavily fact-dependent.
Here is a pdf of the decision in County of Santa Clara v. WCAB (Barbara Justice):
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