California: Apportionment Inappropriate Where PTD Results From Medical Treatment, Not the Underlying Condition

Where a California worker developed a number of conditions during her 26-year career with her employer, including carpal tunnel syndrome (CTS), which medical experts attributed 90 percent to industrial factors and 10 percent to nonindustrial factors, it was error for the state’s Workers’ Compensation Appeals Board to apportion the worker’s permanent total disability between the industrial and nonindustrial causes prior to issuing its award where the worker’s PTD was caused—not by her CTS—but by chronic regional pain syndrome (CRPS), resulting from a failed surgical intervention to treat the CTS [Hikida v. Workers’ Comp. Appeals Bd. (Costco Wholesale Corp.), 2017 Cal. App. LEXIS 572 (June 22, 2017)].

The Court acknowledged that the 2004 amendments to California’s Workers’ Compensation Act were intended to usher in a “new regime of apportionment based on causation,” and a “new approach to apportionment” that “look[s] at the current disability and parcel[s] out its causative sources—nonindustrial, prior industrial, current industrial—and decide[s] the amount directly caused by the current industrial source [quoting Brodie v. Workers. Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1328, 57 Cal.Rptr.3d 644, 156 P.3d 1100)]. The Court indicated, however, that in the instant case, the worker’s PTD was caused by the treatment, not the underlying condition. In that sense, it was akin to an aggravation of the original injury.

The Court added that there was no dispute that the worker’s disabling CTS was largely the result of her many years of clerical employment with Costco. It followed that Costco was required to provide medical treatment to resolve the problem, without apportionment. The surgery went badly, leaving the worker with a far more disabling condition—CRPS—that will never be alleviated. While California workers’ compensation law relieved Costco of liability for any negligence in the provision of the medical treatment that led to petitioner’s CRPS, it did not relieve Costco of the obligation to compensate petitioner for the disability without apportionment.

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