Happy Monday, dear reader!

Your humble blogger knows the internet, nay, the world, is abuzz with the news that SpaceX has had a successful launch and has sent Americans back into space.  It’s pretty exciting stuff, if you ask me – will Californians who volunteer as colonists for Mars be covered by California workers’ compensation?  Your humble blogger is already convinced that space-based injuries, like all injuries, are not industrial.  But the law, being less irrational and biased than yours truly, may very well reach a different conclusion.

Anyway, our own community had its own news break last week.  The Court of Appeal of the Sixth Appellate District has issued a ruling in the case of Justice v. County of Santa Clara.  The basic ruling is this: permanent disability resulting from an industrially necessitated medical procedure is apportionable. 

Just a thought, dear readers – does this mean that every opinion that differs from this one, including Hikida, is an “in-Justice”?  See what I did there?

So anyway, Ms. Justice had a specific injury to her left knee.  She later developed symptoms in her right knee as a compensable consequence.  Justice underwent a total knee replacement to her right knee a year later, and then to her left knee a year after that.  The parties referred the case to an AME who noted osteoarthirits in the knees and a tear that pre-dated the fall at work. 

The AME concluded that there was pre-existing degeneration but that everything prior to the fall would not have, on its own, necessitated the total knee replacement.  So, the AME assigned WPI and apportioned 50% of the permanent disability to pre-existing injuries. 

Well, at trial, the WCJ found that although there would normally be grounds for apportionment of permanent disability based on non-industrial causes, under the Hikida case, “where medical treatment … results in an increase in [permanent disability], [PD] should be awarded without apportionment.”  The WCAB denied reconsideration (other than to address a clerical error), and then, dear readers, Justice came face to face with the Sixth Appellate District.

The Court of Appeal restated the facts and then had a brief discussion of the Hikida decision.  That Court of Appeal opinion, issued in 2017 (does time fly or what, dear readers?), held that when an injured worker developed complex regional pain syndrome as a result of a failed carpal tunnel surgery, the CRPS was not subject to apportionment and so applicant was permanently and totally disabled (being precluded from the labor market).

In diverging from Hikida, the Justice Court cited the case of Petaluma, most humbly summarized by your most humble blogger here, that when a dormant pre-existing condition was triggered by an industrial event, apportionment was warranted, even though, by itself, the pre-existing condition had not yet caused the permanent disability.  So, in Justice, the Court reasoned that since “the injured worker … had an extensive preexisting pathology that when combined with an industrial injury, led to permanent disability…” apportionment was warranted.

But wait… how do we harmonize that with Hikida?  Is the law to be based on geography?  With injuries in Los Angeles costing more than injuries in Santa Clara?  Well the Justice Court distinguishes Hikida by pointing out that the medical treatment caused a new condition – CRPS.  In such a case, no apportionment is warranted. 

So, dear readers, you got that?  If the medical treatment causes a new condition, that condition cannot be apportioned to pre-existing factors, as per Hikida.  However, if the medical treatment causes increased permanent disability for the same condition, then apportionment applies, as per Justice. 

Going forward, though, let’s keep in mind that lawyers have no hesitation about being creative in the interpretation of words.  A new medical condition?  Well, isn’t the fact that there is no a replacement knee a new condition?  After all, the injured worker had a tear, and now has a knee replacement.  We can very well expect plenty of litigation going forward trying to stretch the harmonization offered by Justice to get back to Hikida.

Alrighty dear readers – let’s buckle in and see what new “excitement” June of 2020 has for us.  Personally, my money is on an invasion by the Molemen.  Let’s see what happens!