And here we are again! Just when your humble blogger thought he was finally getting a grip on this whole workers’ compensation thing, the rules are changed once more.
The Court of Appeal decision of Lindh has taking the Workers’ Comp world by storm and has sent the otherwise dead and uncaring hearts of defense attorneys from Eureka to San Diego all aflutter. In the immortal words of Will Smith, “now this is a story all about how [apportionment law] got flipped-turned upside down.”
The basic run down is as follows. Applicant Lindh was a law enforcement officer in the employ of the City of Petaluma when he sustained an injury to his left eye from several physical blows. What followed was long headaches and eventual loss of vision in his eye. His physicians diagnosed a non-industrial condition and opined that the loss of vision was not related to the blows he suffered.
A neuro-ophthalmology QME examined applicant and, among other things, concluded that the blood circulation to his left eye was defective. However, he noted that if not for the blows, applicant would likely have retained a lot of his vision in that eye, but it was not clear how much. He may have even gone his whole life without losing vision in his left eye.
The QME then opined that 90% (later adjusted to 85%) of the cause of the loss of vision was his underlying condition and not the physical blows he suffered.
Now, at this point, the parties were in agreement that if the apportionment were to be sustained, applicant would be entitled to 6% PD, while if it did not, then he’d be entitled to 40% PD. As far as Lindh was concerned, the difference in valuation was about $53,000. But the stakes were much higher than the scope of Lindh’s concern – how would apportionment be treated in California?
Predictably, the WCAB rejected the apportionment analysis both at the trial level and on reconsideration. The reasoning was one often relied on – the QME is confusing cause of injury with cause of permanent disability. As the WCAB reasoned, it doesn’t matter that even 99% of the cause of the injury was non-industrial if the cause of the disability was 100% industrial. As quoted by the COA: “an 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 WCJ and the WCAB thus concluded there was no basis for non-industrial apportionment.
Before we get into the Court of Appeal’s reasoning in reversing the WCAB, just picture this scenario – there is a bridge out there that is crossed by thousands of cars every day. One day, the bridge collapses. Do we say that the last car to get on (or get off) the bridge is responsible for the collapse? No, of course not. But that is the natural extension of “eggshell plaintiff” logic such as this.
In any case, the WCAB provided an extensive history of apportionment reasoning in California workers’ comp law. Rather than a stroll down memory lane, your humble blogger will jump to the exciting conclusion. The COA rejected the reasoning that applicant’s pre-existing, relatively dormant condition, had to have been symptomatic to warrant apportionment, citing E.L. Yeager Construction v. WCAB (2006). It likewise cited ACME Steel, as in that case apportionment to non-industrial hearing loss that had not yet manifested itself was upheld by the COA.
The COA reasoned that the QME in this case did not solely base apportionment on “risk factors” of a condition, but that, instead, testified that in his opinion the analysis happens to be the same for the causation as well as the disability. The COA relied on the QME’s reasoning that but-for the industrial injury, applicant might not have had any sight loss, but because of the non-industrial injury, the extent of loss of sight was worse that it likely otherwise would have been.
Going further, the COA rejected applicant’s arguments by noting “the post-amendment cases do not require medical evidence that an asymptomatic preexisting condition, in and of itself, would eventually have become symptomatic. Rather, what is required is substantial medical evidence that the asymptomatic condition or pathology was a contributing cause of the disability.”
The COA reversed the WCAB and ordered a new award reflecting 85% apportionment to pre-existing conditions.
Just a note, dear readers – ages ago, this blog covered the case of Reff v. WCAB, a writ denied opinion in which the WCAB held that a nurse who contracted occupational pneumonia resulting in an aggravation of her pre-existing but dormant genetic disease was not entitled to treatment or PD for that genetic disease. The WCAB rejected the WCJ’s use of the eggshell plaintiff approach, reasoning that applicant likely would have had a worsening of her non-industrial condition at some point in her life, and the work-related pneumonia only hastened the inevitable.
The other thing to note from the Lindh case, other than the fact that every time I see it I think of those delicious Lindt chocolates, is that the practical approach to apportionment must now be “would there have been less PD if applicant did not have the non-industrial condition?” If the asymptomatic/dormant condition interacted with the industrial injury to result in greater PD than the industrial condition alone would have caused, then there’s grounds for apportionment. The fact that the “risk factors analysis” happens to be the same as the PD analysis is NOT a bar to apportionment.
It’s a new year and a new California Workers’ Comp dear readers – or, shall we say, it’s a new year and workers’ comp apportionment is getting closer to what it always should have been?
