City of Petaluma v. Wcab (lindh): Apportionment to Risk Factors When They Cause Disability
| Publication year | 2018 |
| Author | SURE LOG, ESQ. |
SURE LOG, ESQ.
In 2004 the Legislature made a diametric change to the law on apportionment. Labor Code section 4663 was amended to allow apportionment to causation. Under this statute, and Labor Code section 4664, employers are liable only for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment.
Despite the changes in apportionment law, the WCAB has been reluctant to allow apportionment when characterized as to risk factors. Citing the well-established case of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, the WCAB has frequently held that apportionment to risk factors was impermissible because it constituted apportionment of the injury and not apportionment of the disability.
It is the position of this article that on December 10, 2018, the First District Court of Appeal resolved the issue of whether Labor Code section 4663 allows apportionment to risk factors when they are actual causes of disability. In City of Petaluma v. WCAB (Lindh) the court concluded the WCAB erred when it rejected the apportionment of a qualified medical evaluator (QME), which the WCAB had characterized as apportionment to non-industrial risk factors.
In Lindh, the applicant worked as a law enforcement officer and claimed injury to his left eye. He sustained multiple blows to the left side of his head during a canine training course. After the training, he had severe headaches lasting hours or days. A month later, while off duty, the applicant suddenly lost vision in his left eye.
Two physicians, one at Kaiser and one at the University of California San Francisco (UCSF), evaluated the applicant, and neither believed the vision loss was related to the blows to his head. A QME then evaluated the applicant and reported that the blood circulation to the left eye was defective.
The QME stated that absent the work-related injury, the applicant "most likely would have retained a lot of his vision in that eye," although he could not "guess" how much. The QME agreed the applicant might have gone his whole life without losing vision but also agreed that even without the blows to the head, the applicant could have lost vision due to his underlying condition. The QME found it unlikely the applicant would have suffered a vision loss had he not had the underlying rare condition of vascular spasticity.
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