Last year the Workers’ Compensation Appeals Board issued a decision that more narrowly interprets the 2017 decision of Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal. Comp. cases 679] (Hikida). The narrower interpretation makes it bit more difficult for an injured worker to argue that failed industrial treatment entitles them to a non-apportioned award.

The case of Hikida involved a Costco employee who developed carpal tunnel syndrome, which was deemed to be industrial. The applicant later had a carpal tunnel release surgery, which resulted in the development of chronic regional pain syndrome. The AME found that 100% of the permanent disability provided was due to the chronic regional pain syndrome, while finding that 10% of the applicant’s underlying condition of carpal tunnel syndrome was due to non-industrial causes, and 90% was due to the industrial injury. The Hikida court held that applicant was entitled to an un-apportioned award since 100% of the applicant’s disability was due to a failed surgery that caused applicant to develop chronic regional pain syndrome. The court reasoned that since medical treatment cannot be apportioned, the resulting 100% permanent and total disability found by the AME from failed industrial treatment is also not subject to apportionment (Hikida v. Workers’ Comp. Appeals Bd., supra, 12 Cal.App.5th 1249).

The decision of County of Santa Clara v. Workers’ Comp. Appeals Bd. (2020) 49 Cal.App.5th 605 [262 Cal.Rptr.3d 876] (Justice) interprets Hikida in a narrower way than some trial courts have and seems to have clarified the narrow situations in which the ruling in Hikida may apply. The case of Justice involved an applicant who injured their bilateral knees, due to a slip and fall. The applicant had a history of bilateral knee issues and arthritis. The applicant had bilateral knee replacement surgeries, and the AME found that the fall was not the sole cause for the knee replacement surgeries, but the fall hastened the need for them. The AME found that 50% of the bilateral knee condition was related to the industrial fall and 50% was related to non-industrial preexisting degeneration of the knees (Ibid).

The Workers’ Compensation Judge (WCJ) at trial found that since the surgery for the knees increased the level of permanent disability the award should be un-apportioned and cited the case of Hikida to justify the ruling. The Appeals Board overruled the WCJ and held that an un-apportioned award per Hikida would only apply when medical treatment for an industrial injury causes a new compensable consequence injury, which is entirely the result of the industrial medical treatment (County of Santa Clara v. Workers’ Comp. Appeals Bd., supra, 49 Cal.App.5th 605). This is a narrower interpretation compared to how many practitioners have applied Hikida. The Justice decision finds that the sole cause of the applicant’s disability must be related to failed industrial treatment for Hikida to apply (Ibid). This is a rare circumstance, so if the cause of the permanent disability is due to both non-industrial causes as well as failed industrial medical treatment, the non-industrial causes must be apportioned per Justice.

It is still a bit too soon to predict how the Justice decision will be applied in the future. However, keep in mind that if there is a conflict in different district court opinions the trial judge can choose between conflicting lines of authority until either the Supreme Court resolves the conflict, or the legislature clears up the uncertainty with legislation (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [20 Cal.Rptr. 321, 369 P.2d 937]; see also: Durazo v. Solomon Dental Corp., (2020) Cal.Wrk.Comp. P.D. LEXIS 259 [85 Cal. Comp. Cases 976]. It could be argued that there is no actual conflict between the two above-referenced cases, as the case of Justice simply provided the clarification attorneys, doctors, and the WCAB needed to correctly apply Hikida, and cease the application of Hikida in situations where apportionment is applicable.