In City of Petaluma v. WCAB and Lindh, (A153811, Filed 12/10/18), the California Court of Appeal, First Appellate District, rejected Applicant’s claim that apportionment of permanent disability may not reflect a previously asymptomatic underlying condition.
Aaron Lindh suffered an industrial injury during a training exercise when he was struck on the side of the head multiple times by a muzzled dog. Symptoms of the injury included severe headaches, and a month later he suddenly lost most of the vision in his left eye. Medical evaluations by his treating physician and by a Panel Qualified Medical Evaluator (PQME) determined that Lindh’s circulation to his left eye had been interrupted due to a preexisting malformation upon which the industrial injury acted. He suffered no symptoms or impairment prior to the injury.
In analyzing apportionment of the permanent impairment, the PQME apportioned 85% of the applicant’s disability to the preexisting underlying condition and 15% to the injury at work. The doctor reasoned that the strikes to the head aggravated the underlying asymptomatic pathology. The WCJ disagreed with the apportionment opinion of the PQME, finding that there should be no apportionment of the permanent disability award. The Board affirmed, concluding that the PQME had confused causation of injury with causation of disability.
The Court of Appeal reversed the WCAB decision and supported its conclusions in an analysis of Labor Code 4663. In 2004, the California Legislature substantially overhauled the apportionment statutes as part of the Senate Bill 899 reforms. The legislation amended Labor Code section 4663 to state “a physician shall make an apportionment determination by finding 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….”
Interpretations of this statutory language have been frequently litigated and hotly debated. In the 2005 Escobedo v. Marshalls case, the court determined that ‘other factors’ under the statute “may include disability that was apportionable prior to the reforms, like the natural progression of a non-industrial condition or disease, preexisting disability or a post-injury disabling event.” The court in Escobedo also observed that “the issue of causation of permanent disability, for purposes of apportionment, is distinct from the issue of causation of the injury.” Thus, the percentage of an applicant’s injury that is causally related to the employment is not necessarily the same as the percentage of the injured workers’ permanent disability causally related to his or her injury. In 2006, E.L. Yeager Construction v. WCAB agreed that a preexisting asymptomatic degenerative disease was validly apportionable. Most recently in 2017, City of Jackson v. WCAB determined apportionment of permanent disability may be properly based on genetics or hereditability.
Lindh reinforces the trend that evolved over the years of interpreting LC 4663 concluding that apportionment of a permanent disability award must account for preexisting pathology, asymptomatic prior conditions, asymptomatic congenital conditions and heredity/genetics. Defendants must ensure that all analysis of permanent disability by examining physicians include a review of the industrial and non-industrial causes of permanent impairment.
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