Limiting the Scope of Hikida
By Neelu K. Khanuja, Esq., Founding Attorney at Khanuja Law
Published in the August 2020 issue of the Executives in Workers' Compensation Newsletter
On May 27, 2020, in County of Santa Clara v. Workers' Comp. Appeals Bd.(Justice), (2020) 85 Cal. Comp. Cases 467, the 6th District Court of Appeal held that permanent disability could be apportioned to nonindustrial factors pursuant to Labor Code Section 4663 following industrial medical or surgical treatment, regardless if it is directly caused by the work-related injury. Under Labor Code Section 4663, when there is unrebutted, substantial medical evidence that a nonindustrial condition was a cause, in part, of the permanent disability, the permanent disability shall be apportioned between the nonindustrial and industrial causes. Here, the Applicant, Barbara Justice, sustained injury to her bilateral knees while working as a claims adjuster for the Defendant, County of Santa Clara. She underwent total knee replacement surgery for her right knee in 2012 and total knee replacement surgery for her left knee in 2013. Orthopedic AME Dr. Mark Anderson evaluated the Applicant and found that “absent the underlying pre-existing arthritis, it is medically probable that Justice would not have had total knee replacement as she did when she did . . .” Accordingly, AME Dr. Anderson apportioned 50% of Applicant’s bilateral knee disability to the extensive pre-existing knee pathology and 50% to Applicant’s industrial injury. However, the Workers’ Compensation Judge (“WCJ”) found that the holding in Hikida was applicable and the post-surgical permanent disability shall not be apportioned. Hikida v. Workers' Comp. Appeals Bd. (2017) 82 Cal. Comp. Cases 67. The WCJ provided the following rationale for his decision “Hikida holds that where medical treatment (here, the bilateral knee replacement surgery) results in an increase in permanent disability, permanent disability shall be awarded without apportionment.”
The 6th District Court of Appeal found that the facts in Hikida differed from the facts in this matter. Here, the Applicant had nonindustrial, pre-existing knee degeneration that caused 50% of the resulting post-surgical permanent disability. The Court provided a narrow interpretation of Hikida, finding that it only precludes apportionment when the sole cause of the permanent disability is the industrial medical treatment. In this matter, the industrial medical treatment did not result in a new compensable consequential injury and the permanent disability was not caused solely by the industrial medical treatment. The holding follows the finding in Petaluma which states that when there is unrebutted, substantial medical evidence that nonindustrial factors caused permanent disability, permanent disability shall be apportioned pursuant to the Labor Code. City of Petaluma v. Workers' Comp. Appeals Bd. (2018) 83 Cal. Comp. Cases 1869. The Court here found that AME Dr. Anderson’s initial report, five supplemental reports and two depositions constituted unrebutted, substantial medical evidence that Applicant’s nonindustrial pre-existing knee pathology was a cause of her post-surgical permanent disability. The Court annulled the Workers’ Compensation Appeals Board’s decision and remanded the matter to the Board for further proceedings, providing instructions on how to apportion the Applicant’s permanent disability. In sum, the Court's interpretation of Hikida limits its scope and applicability.
