Hikida Matata

• Publication year: 2018
• Author: HENRY K. GAUS

Hikida Matata

HENRY K. GAUS

San Jose, California

Should employers be concerned that workers' compensation liability will mushroom as a result of the decision in Hikida v. Workers' Compensation Appeals Board (2017) 82 Cal.Comp. Cases 679 regarding apportionment of permanent disability? Is Hikida a significant decision that changes the landscape of apportionment? While the argument can be made that both questions could be answered affirmatively, a careful review of Hikida suggests otherwise. Bertram Russell, in Chapter 4 of Mysticism and Logic, said that "Mathematics may be defined as the subject in which we never know what we are talking about, nor whether what we are saying is true." Similarly, when it comes to apportionment of disability, it remains to be seen whether we know what we are talking about and whether what is being said about Hikida and its impact is fact or fiction. The perception of Hikida will differ substantially between an employer and an injured worker.

Let's begin by looking at the facts in Hikida and the conclusion Division Four of the Second Appellate District reached. Applicant was employed by Costco from November 1984 to May 2010 and developed a number of medical conditions, including carpal tunnel syndrome (the industrial injury). Applicant left work in May 2010 and had carpal tunnel surgery. After surgery, applicant developed chronic regional pain syndrome, or CRPS (the consequential, or secondary, injury), which caused debilitating pain in the bilateral upper extremities and severely impaired function. Applicant never returned to work. Id. at 681.

Orthopedic agreed medical evaluator (AME) Chester Hasday, M.D., opined that the carpal tunnel syndrome was 90 percent caused by industrial factors and 10 percent by nonindustrial factors, applicant developed CRPS as a result of failed carpal tunnel surgery, and applicant was totally disabled from the effects of CRPS (not from carpal tunnel). The trial judge found that applicant's total disability was 90 percent due to industrial factors "after adjustment for apportionment." Applicant sought reconsideration, contending that her disability was 100 percent industrial because it derived from the effects of medical treatment her industrial injury had necessitated. Id.

A divided Appeals Board panel affirmed the trial judge's decision. The majority agreed with apportionment because the CRPS was caused by surgery to treat carpal tunnel syndrome, which the AME found to be 10 percent nonindustrial. However, the Board granted reconsideration and remanded, as the trial judge had failed to take into account psychiatric injury, and other issues, in determining the level of permanent disability. The dissent cited cases indicating that an injured worker is entitled to compensation for a new or aggravated injury resulting from medical/surgical treatment. The dissent felt that the trial judge had apportioned based on causation of the carpal tunnel, not on causation of the permanent disability. On remand, applicant's contentions for total disability included psychiatric injury, vocational evidence, and Labor Code section 4662 (loss of the use of both hands presumed to be total disability). The trial judge increased the permanent disability to 98 percent after apportionment. Applicant filed a second Petition for Reconsideration, which the Board, with another split panel, also denied, again finding apportionment appropriate. Id. at 682.

After rejecting contentions regarding the timeliness of applicant's Petition for Writ of Review, the Second Appellate District turned to the merits of applicant's contention for unapportioned total disability. The court first discussed changes in the law regarding apportionment, including Senate Bill 899 and Labor Code sections 4663 and 4664 and, quoting Brodie v. WCAB (2007) 72 Cal.Comp.Cases 565, 576, noted that the 2004 amendments were intended to usher in a "new regime of apportionment based on causation" and a "new approach to apportionment" that

look[s] at the current disability and parcel[s] out its causative sources—nonindustrial, prior industrial, current industrial—and decide[s] the amount directly caused by the current industrial source.

Id. at 687.

In footnote 12 at page 687, the court pointed to the intent of SB 899, quoting from Escobedo v. Marshalls (2005) 70 Cal. Comp.Cases 604, 607:

[I]n [enacting the 2004 changes],...the Legislature intended to expand...the scope of legally permissible apportionment.... [S]ection 4663(c) provides for apportionment based on "what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior injuries".. [T]his language appears to reflect a legislative intent to enlarge the range of factors that may be considered in determining the cause of permanent disability....

(Id. at pages 616-617.) (Italics omitted.)

Thus, the court recognized that the Legislature had intended to expand the scope of apportionment. It also appears that the court's intent was to remain consonant with existing law, but the facts pointed the court in a different direction. At page 688 the court stated:

Under the changes wrought by the 2004 amendments, the disability arising from petitioner's carpal tunnel syndrome [the industrial injury] was apportion-able between industrial and nonindustrial causes. However, petitioner's permanent total disability was caused not by her carpal tunnel condition, but by the CRPS [the consequential, or secondary, injury].... The issue presented is whether an employer is responsible both for the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.

[Page 5]

(Emphasis added.)

The...