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Jacobsmeyer: Court Reverses WCAB on Apportionment Causation Standard

  • State: California

The 1st Appellate District Court of Appeals has reversed yet another WCAB opinion in which the board has applied the post-SB 899 rules on apportionment too restrictively.

Jake Jacobsmeyer

Jake Jacobsmeyer

In City of Petaluma v WCAB (Lindh), the appeals court has provided additional clarification to the current rules on apportionment under Labor Code 4663 in the post-SB 899 world.

Aaron Lindh was a public safety officer injured while participating in a canine training course. During the training, he was struck in the head on multiple occasions by a dog.  Shortly after the initial injury, he developed severe headaches lasting between several hours to one or two days.

Over a month later, while off duty, he suffered a sudden loss of vision in his left eye.  Initial evaluations with treating physicians did not identify an occupational cause to the loss of vision and attributed the blindness to a rare, underlying vascular condition.

However, a qualified medical evaluator, neuro-ophthalmologist Dr. David Kaye, evaluated Lindh and concluded that the loss of vision was due to a combination of factors, one of which was occupational. He identified the mechanism of the loss of vision as being due to applicant’s pre-existing, asymptomatic defective blood circulation to the eye consisting of a vasospastic condition with superimposed trauma from the blows to the head.

Kaye opined that the combination of these factors caused the eye blood vessels to go into vasospasm and in effect caused a “stroke” within the eye, resulting in the loss of vision. Kaye did admit he could not predict if the pre-existing condition would ever have caused disability in the absence of the aggravating blows but also opined the condition could have flared up on its on without trauma with similar results.

Kaye offered the final opinion that 85% of the disability was caused by the pre-existing vasospastic condition of the blood vessels and 15% to the blows to the head. At trial, the parties stipulated the applicant’s disability without apportionment rated at 40%, and with apportionment to 6% based on Kaye’s opinion.

The workers' compensation judge rejected the QME’s apportionment, concluding it was not substantial evidence. After granting reconsideration, the Workers' Compensation Appeals Board upheld the trial decision, concluding:

“Dr. Kaye’s opinion establishes that applicant’s pre-existing hyperreactive type personality and his asymptomatic and ... pre-existing systemic hypertension and vasospasm were mere risk factors that predisposed him to having a left eye injury, but the actual injury and its resultant disability (i.e., the left eye blindness) were entirely caused by industrial factors. [A]n 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 board also rejected the QME's opinion on the basis that the doctor confused “causation of injury with causation of disability,” holding that “there is no legally valid basis for apportionment in this case.”

The court began its analysis of the apportionment statues with a lengthy discussion of the law pre- and post-SB 899, and noted significant differences in the application of apportionment as a result of SB 899. Beginning with Escobedo, the court ran through the litany of cases, with extensive discussion of each, finding a basis for apportionment including Brodie, E.L. Yeager, Acme Steel and culminating in a discussion of City of Jackson (Rice).

The court notes Lindh made the same arguments regarding apportionment that had been rejected by the cited cases when he asserted Kaye based his apportionment on risk factors alone, and arguing such an opinion could not form a basis for apportionment.

After citing a portion of the record quoted by applicant, the court concluded that Kaye seemed to understand the issue of causation of injury versus causation of disability very well. Citing Escobedo and Jackson, the court pointed out it was quite possible for causation of injury and disability to be the same, as had been opined by Kaye.

The appellate court indicated that Kaye had concluded both causes contributed to both injury and disability, and explained his opinion in detail both in reports and by testimony.

The appellate court also rejected Lindh's analysis of post-SB 899 cases allowing apportionment that all involved degenerative conditions, which implied there would be some progressive disease process. Lindh argued that because his condition might never have become symptomatic, his disability could not be apportioned:

“More importantly, the post-amendment cases do not require medical evidence that an asymptomatic pre-existing 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 court ordered the matter remanded to the WCAB with instructions that an award apportioning 85% to non-industrial factors be made.

Comments and conclusions

This is the second in a series of recent cases, City of Jackson being the first, which are redefining how the law on apportionment is to be applied. In Jackson, the court specifically rejected the WCAB’s assertion that any apportionment that mentioned “immutable factors” could not stand. The court instead held the issue is whether there is substantial medical evidence to support apportionment rather than applying a litmus test of so-called immutability.

The holding in City of Petaluma has a similar flavor, but likely a broader application. The court rejected the WCAB’s analysis that just because the physician opined the cause of injury and cause of disability were there same, the opinion was not substantial evidence.

In that respect, this case builds on the holding in Jackson to reject formulistic approaches used by the WCAB to reject what the appellate courts find to be completely valid apportionment.

As commented on above, this case should have much broader application than Jackson. It is really unlikely that we are going to be searching for genetic causes of disability. 

Jackson was fundamentally an apportionment to degenerative disc disease. Many observers (including myself) have commented in the final analysis that the only real effect of Jackson was to reject the immutable factors doctrine concocted by the WCAB as a basis to reject an apportionment opinion.

The physician in Jackson simply opined that the cause of the DDD was based on heredity/genetics, but the apportionment was to the pre-existing condition. The WCAB just highlighted the issue with the blanket rejection of apportionment where there was a mention of the immutable factors/heredity/genetics, and the court jumped in to reject that doctrine.

In Lindh, the court makes it clear that if disability is related to multiple causes, apportionment is required.

Under the current law, the salient question is whether the disability resulted from both nonindustrial and industrial causes, and if so, apportionment is required. This holding will have application in many more situations than City of Jackson.

Cases involving increased disability due to diabetes, cardiovascular disease, pulmonary disease, etc., are going to be subject to apportionment if the applicant’s disability is a result of both the work injury and the pre-existing condition.

This case, in my opinion, answers the question of whether we apportion to underlying diabetes in the case of a relatively minor injury resulting in an amputation. Based on the holding in City of Petaluma, the answer is clearly in the affirmative. 

Similarly, we have seen an attempt in some circumstances to resurrect the argument that joint replacement impairments should not be subject to apportionment. If the applicant would not have had such a replacement absent a pre-existing condition, apportionment under Lindh appears mandated.

Apportionment to underlying cardiovascular disease in the event of a work-related cardiac injury would absolutely fall within the same analysis. Apportionment in many of these kinds of cases will by much more certain, given the holding in City of Petaluma.

Congratulations go to William Davis of Mullin and Filippi’s Santa Rosa office, who briefed and argued the case on behalf of defendant, for a job excellently done. This case is a significant addition to the current law on apportionment and advances our understanding of how that issue should be applied.

Richard M. "Jake" Jacobsmeyer is a founding partner of the Shaw, Jacobsmeyer, Crain and Claffey workers' compensation defense law firm, based in Oakland.

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Susan England Dec 19, 2018 a 2:12 pm PST

A usual thorough and helpful analysis by Jacobsmeyer and I especially liked the appreciation given to Mr. Davis for a job well done.

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