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URGENT REPORT: City of Petaluma v. WCAB (Lindh): Apportionment to Risk Factors

Posted by Sure S. Log on Dec 12, 2018 10:31:07 AM

In 2004, the Legislature made a diametric change to the law on apportionment. Labor Code § 4663 was amended to allow apportionment to causation. Under this statute, employers are only liable 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 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.

On Dec. 10, 2018, the 1st District Court of Appeal addressed the issue of whether § 4663 allows apportionment to risk factors. In City of Petaluma v. WCAB (Lindh), the Court concluded the WCAB erred when it rejected a Qualified Medical Evaluator's (QME) apportionment, which the WCAB had characterized as apportionment to non-industrial risk factors.

FACTS OF THE CASE

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.

The applicant was evaluated by two physicians, one at Kaiser and one at the University of California, San Francisco (UCSF), and neither believed the vision loss was related to the blows to his head. The applicant was then evaluated by a QME, who reported that the blood circulation to the left eye was defective.

The QME reported 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 it was possible the applicant could have gone his whole life without losing vision, but also agreed that even without the blows to the head, the applicant still could have lost vision due to his underlying condition. The QME found it was unlikely the applicant would have suffered a vision loss if he had not had the underlying condition of vascular spasticity, a condition that is rare.

The QME initially apportioned 90 percent of the applicant's disability to the underlying condition, meaning "[v]asospastic-migraine body type," and 10 percent due to the stress of the injuries. He later apportioned 85 percent of the permanent disability to the old condition and 15 percent to his industrial injury.

The WCJ rejected the QME's apportionment analysis and found the applicant had 40 percent permanent disability without apportionment. The WCAB affirmed the decision. It explained the QME's "opinion establishes that applicant’s preexisting hyperreactive type personality and his asymptomatic . . . preexisting systemic hypertension and vasospasm were mere risk factors that predisposed him to having a left eye injury, but the actual injury and its resultant disability (i.e., the left eye blindness) were entirely caused by industrial factors.” It stated, “[A]n opinion that bases apportionment upon the percentage to which non-industrial risk factors contributed to causing the injury is not substantial evidence that legally justifies apportionment.” The WCAB found the QME had “confused causation of injury with causation of disability” and that “there is no legally valid basis for apportionment in this case.”

 THE COURT'S DECISION

The 1st District Court of Appeal annulled the decision and held that apportionment was required based on the QME's opinion. It began its opinion with a history of 2004 amendments to apportionment and a discussion of cases which applied the amended apportionment statutes. The Court found the QME understood the distinction between the causes of an injury and the causes of a disability, and the QME concluded that the same analysis applied to both. Although the QME referred to the underlying condition as putting the applicant at a higher risk of suffering the disability, the Court found this did not change the fact the applicant had an underlying condition that was, along with the work-place injury, a cause of his impaired vision.

The Court added that the applicant seemingly conflated his asymptomatic condition — vasospasticity personality and vasculature — with his history of migraine headaches, which he also characterizes as simply a “risk factor.” Nevertheless, the Court stated, "But even if characterized as a 'risk factor,' his history of migraines reflected an underlying condition that in [the QME's] opinion was largely the cause of his loss of vision." The Court also found the QME's opinion was consistent with the doctors at UCSF and Kaiser, who both found it was unlikely the industrial head trauma caused the subsequent loss of vision.

The Court rejected the applicant's argument that his disability could not be apportioned, because his preexisting, asymptomatic condition might never have resulted in disability or vision loss. This argument reflected the state of law prior to the 2004 amendments. It explained, "Under the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required. ([Citations].) Whether or not an asymptomatic preexisting condition that contributed to the disability would, alone, have inevitably become manifest and resulted in disability, is immaterial."

The Court explained that "the post-amendment cases uniformly focus on whether there is substantial medical evidence the disability was caused, in part, by nonindustrial factors, which can include 'pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.' ([Citation])." The Court found no merit to applicant's claim that there can be no apportionment to a condition that caused no disability prior to the work-related injury stating, "By definition, an asymptomatic preexisting condition has not manifested itself and, thus, by definition has not caused a prior disability."

The Court concluded the QME's opinion constituted substantial evidence on the issue of apportionment. It remanded to the WCAB with directions to issue an award apportioning the applicant's disability 85 percent to his preexisting condition and 15 percent to his industrial injury.

ANALYSIS OF THE DECISION

With the exception of Hikida v. WCAB (2017) 12 Cal.App.5th 1249, every appellate-level decision interpreting apportionment under the 2004 reforms has favored employers. In BrodieE.L. Yeager, and Acme Steel, the courts upheld a doctor's authority to apportion an applicant's disability to pathology and asymptomatic causes. In Benson, the court allowed apportionment between industrial injuries. Finally, in Rice, the court rejected the WCAB's decision that it was impermissible to apportion to immutable factors allowed apportionment to heredity or genetic factors.

Lindh is the next case in that line. It eliminates a pathway that had been used by the WCAB to find a doctor's opinion insubstantial on the issue of apportionment. In the past, the WCAB has refused to allow apportionment to pre-existing diabetes, hypertension, hyperlipidemia, obesity, a history of smoking, and family history by characterizing these as "risk factors" and not causative factors. (See e.g., United Airlines v. WCAB (Milivojevich) (2007) 72 Cal.Comp.Cases 1415 (writ denied); Anderson v. Jaguar/Landrover of Ventura (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 327; Ricken v. County of Riverside (2015) 2015 Cal. Wrk. Comp. P.D. LEXIS 696; Martinez v. County of Alameda (2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 17.) The WCAB itself never defined what constituted a "risk factor" and how it differed from a factor that could be apportioned. Instead, the WCAB took it upon itself to determine what factors were apportionable.

Under Lindh, this approach is no longer permissible. Along with the other cases, Lindh allows doctors to determine "what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury" as required by § 4663(c).

This, however, does not mean that every physician's apportionment opinion will be adopted. Lindh recognized that the mere fact a physician’s report apportions causation is not conclusive and stated that "the post-amendment cases uniformly focus on whether there is substantial medical evidence the disability was caused, in part, by nonindustrial factors. In Lindh, the Court performed a thorough review of the QME's finding before finding it constituted substantial evidence

Therefore, although the law generally favors employers on the issue of apportionment, they still have the burden of proving that apportionment applies. The WCAB still retains authority to determine whether a doctor's opinion constitutes substantial evidence and to issue an unapportioned award if the apportionment opinion is not substantial. But, to reject a doctor's opinion on apportionment, the WCAB must explain why an opinion should not be followed. It can no longer simply reject apportionment by characterizing the non-industrial factors as "immutable factors" or "risk factors."

Lindh may be obtained from the California Courts' Website at the following: http://www.courts.ca.gov/opinions/documents/A153811.PDF

 

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