Legal battles over apportionment are one of the staples of workers’ comp disputes. And certain cases are important enough and sufficiently well known to make it into the California workers’ comp pantheon.
Escobedo….Benson….Brodie….and now Hikida?
The case is Maureen Hikida v. WCAB (Costco), a June 2017 opinion from the California Court of Appeal Second District, Division Four.
A link to the Hikida case can be found at the end of this post.
Ms. Hikida, a 16 year clerical employee of Costco, developed carpal tunnel syndrome. Surgery went poorly, and she developed a painful and debilitating post-surgical condition known as chronic regional pain syndrome, also known as CRPS.
The AME found that her carpal tunnel condition was industrial and that she was permanently and totally disabled. But the AME apportioned one-tenth of the permanent disability to non-industrial factors. The workers’ comp judge made a finding of a 90% rating due to industrial factors after apportionment (i.e. 100% less 10% non-industrial factors).
After an initial finding , appeal, remand, and second WCJ finding, the WCAB panel majority eventually upheld the apportionment determination. However, the dissenting WCAB commissioner argued that there should be no apportionment.
The Hikida Court of Appeal also finds no applicable apportionment.
The key here is that the medical evidence showed that Ms. Hikida’s permanent total disability was caused by the CRPS, not by the underlying carpal tunnel.
The Hikida court phrased the issue as follows: “The issue presented is whether an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.”
The court holds that the disability caused by the medical treatment should not be apportioned:
“Here, there is no dispute that the disabling carpal tunnel syndrome from which petitioner suffered was largely the result of her many years of clerical employment with Costco. It followed that Costco was required to provide medical treatment to resolve the problem, without apportionment. The surgery went badly, leaving appellant with a far more disabling condition — CRPS — that will never be alleviated. California workers’ compensation law relieves Costco of liability for any negligence in the provision of the medical treatment that led to petitioner’s CRPS. It does not relieve Costco of the obligation to compensate petitioner for this disability without apportionment.
Our review of the authorities convinces us that in enacting the “new regime of apportionment based on causation,” the Legislature did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.”
This ruling is largely predicated on the concept that under a long line of California cases injuries and aggravations due to industrial medical treatment are within the exclusive jurisdiction of the WCAB. Workers can not sue the employer and insurer for medical negligence or poor outcomes.
Defendant Costco will undoubtedly attempt to interest the California Supreme Court in reviewing the decision.
Assuming Hikida stands, however, the question is whether this case will have application to a wide range of situations. Will it apply in situations where a claimant has become opioid dependent as a result of treatment? Cases of adverse medication reactions? Cases where surgical infections and other surgical complications lead to dire circumstances?
And does it have any implication for “Steinkamp” type situations, where the ratable permanent disability is not due to the underlying joint that was was injured and replaced, but rather to the artificial joint that replaced the injured joint?
And could the case have implications where treatment was refused or neglected, with resulting complications that go far beyond the original body part injury?
In time the courts will sort out these questions.
Meanwhile, the California workers’ comp community should get familiar with this case: