WCDefenseCA

Well, dear readers, I wish I had better news for you.

I know you guys are real troopers – despite overeating at yesterday’s BBQs and receiving treatments at the local hospital’s burn unit for those illegal fireworks that I SPECIFICALLY TOLD YOU NOT TO PLAY WITH, you still made it to work and checked your e-mail for today’s blog post.

Well, if you were hoping that I’d have something to lift your spirits, prepare to get burned (again?)

What I’ve got for you is Hikida, a Court of Appeal decision issued on June 22, 2017, regrettably published and citeable.

The facts are pretty simple and straight forward – applicant was  engaged in clerical work for defendant for over 25 years, and developed carpal tunnel syndrome.  The condition ultimately led applicant to undergo carpal tunnel syndrome, from which she developed complex regional pain syndrome, which according to the AME, rendered her permanently and totally disabled, but that 10% of her carpal tunnel syndrome was caused by non-industrial factors.

Although the WCJ was inclined to provide apportionment to non-industrial causes, applicant argued to the WCJ, the WCAB, and the Court of Appeal that based on the other injured body parts, and the presumption of Labor Code section 4662(a)(2) (“loss of both hands or the use thereof”) that applicant should be found permanently and totally disabled.

The Court of Appeal reasoned that “the disability arising from [applicant’s] carpal tunnel syndrome was apportionable between industrial and non-industrial causes.  However, [applicant’s] permanent total disability was caused not by her carpal tunnel condition, but by the CRPS resulting from the medical treatment her employer-provided.”

The Court of Appeal concluded that the employer is responsible “for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.”

From the opinion itself, it does not appear there is an allegation of medical malpractice, negligence, or some sort of defective durable medical equipment.  Sometimes surgeries don’t go well, and this was one of those times.

The net result of this opinion is that documented non-industrial causes of applicant’s permanent disability are wiped out by additional impairment resulting from medical treatment with poor results.  While the applicants’ bar might be celebrating, this defense attorney is certainly hoping for intervention from a higher authority… No, no, dear readers, not THAT much higher – here’s hoping that this one goes up to the Supremes!