ADJ10374813 — California WCAB decision

ADJ10374813 · January 11, 2022

Findings of Fact, Awards and Order of March 9, 2020 affirmed except Findings 4 and 5 and paragraphs (1) and (3) of the Award rescinded and substituted; permanent disability and apportionment deferred pending further proceedings by WCJ; matter returned to trial level.

Issues decided

Medical opinions weighed

Authorities named

District office

Bakersfield

What the panel ordered

Petition for Reconsideration filed by defendant challenging WCJ's disallowance of apportionment; matter returned to WCJ for further proceedings and new decision on permanent disability and apportionment in light of County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Permanent disability ratingRemandedright knee

The WCJ's original disallowance of apportionment based on Hikida was reconsidered in light of the narrower application of Hikida clarified by Justice, requiring further proceedings to determine permanent disability and apportionment.

From the decision · page 3In this case, we note that in his Opinion on Decision and in his Report, the WCJ relies solely upon the Hikida principle to disallow apportionment. The WCJ rejected the apportionment opinion of Dr. Hanley, the Panel Qualified Medical Evaluator (PQME), who opined in his June 13, 2018 report that up to 90% of applicant's permanent disability is caused by non-industrial other factors (degenerative arthritis, etc.) under Labor Code section 4663. (Joint exhibit 3.) According to the WCJ, all of applicant's permanent disability was caused by the right knee replacement surgery that unfortunately produced a poor result.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The WCJ relied solely on Hikida to disallow apportionment and rejected Dr. Hanley's opinion that up to 90% of disability was caused by non-industrial factors.

Favours Defendant prevailed

This led to the need to revisit permanent disability and apportionment in light of the Justice decision.

From the decision · page 3In this case, we note that in his Opinion on Decision and in his Report, the WCJ relies solely upon the Hikida principle to disallow apportionment. The WCJ rejected the apportionment opinion of Dr. Hanley, the Panel Qualified Medical Evaluator (PQME), who opined in his June 13, 2018 report that up to 90% of applicant's permanent disability is caused by non-industrial other factors (degenerative arthritis, etc.) under Labor Code section 4663. (Joint exhibit 3.) According to the WCJ, all of applicant's permanent disability was caused by the right knee replacement surgery that unfortunately produced a poor result.

The Court of Appeal in Justice clarified that Hikida precludes apportionment only when industrial medical treatment is the sole cause of disability.

Favours Applicant prevailed

This clarification required the WCJ to reconsider apportionment and permanent disability findings.

From the decision · page 3At the time of the WCJ's Opinion and Report, however, the Court of Appeal had not yet issued its opinion in County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605 [85 Cal.Comp.Cases 467]. In that case, the Court of Appeal stated that the Hikida principle may have "narrower" application, as follows: "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 the industrial medical treatment is the sole cause of the permanent disability." (Justice, supra, 49 Cal.App.5th at 615.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code sections 5900(a), 5903; Cal. Code Regs., tit. 8, §§ 10605(a)(1), 10615(b), 10940(a)

To be timely, a petition for reconsideration must be filed within 25 days from a final decision served by mail in California.

The defendant's petition for reconsideration was timely filed.

From the decision · page 2It appears that no answer was filed by applicant. The WCJ submitted a Report and Recommendation ("Report"). At the outset, we observe that to be timely, a petition for reconsideration must be filed with (i.e., received by) the WCAB within 25 days from a "final" decision that has been served by mail upon an address in California. (Lab. Code, § 5900(a), 5903; Cal. Code Regs., tit. 8, § 10605(a)(1), 10615(b), 10940(a).) A petition for reconsideration of a final decision by a workers' compensation administrative law judge must be filed in the Electronic Adjudication Management System (EAMS) or with the district office having venue. (Cal. Code Regs., tit. 8, § 10940(a).) The Division of Workers' Compensation (DWC) closed its district offices for filing as of March 17, 2020 in response to the spread of the novel coronavirus (COVID-19).2 In light of the district offices' closure, the Appeals Board issued an en banc decision on March 18, 2020 stating that all filing deadlines are extended to the next day when the district offices reopen for filing.

County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605

Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability.

The WCJ must revisit permanent disability and apportionment in light of this narrower interpretation of Hikida.

From the decision · page 3At the time of the WCJ's Opinion and Report, however, the Court of Appeal had not yet issued its opinion in County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605 [85 Cal.Comp.Cases 467]. In that case, the Court of Appeal stated that the Hikida principle may have "narrower" application, as follows: "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 the industrial medical treatment is the sole cause of the permanent disability." (Justice, supra, 49 Cal.App.5th at 615.)

ADJ10374813 · January 11, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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