The California Supreme Court will not depublish a lower court's decision that limited the ability of an employer to apportion its liability for the poor outcome of a worker’s surgery.

In June, the 2nd District Court of Appeal released a decision in Hikida v. WCAB (Costco Wholesale Corp.), which said an employer is responsible for any disability caused by an unsuccessful medical intervention, without apportionment to any non-industrial causes for the underlying injury.

Maureen Hikida had worked as an auditor for the Costco Wholesale Corp. for more than 25 years and developed a number of medical conditions, including carpal tunnel syndrome.

In May 2010, Hikida underwent carpal tunnel release surgery. After this, she developed chronic regional pain syndrome and never returned to work.

An agreed medical evaluator opined that the CRPS was permanently and totally disabling for Hikida, as it severely limited her ability to use her hands and arms. The AME attributed the CRPS entirely to the failed surgery, although he said Hikida’s need for surgery was caused by the combined effect of industrial and non-industrial factors.

Administrative Law Judge M. Victor Bushin accepted the AME’s opinion as persuasive. Based on the AME’s assessment of Hikida’s need for surgery, Bushin apportioned 90% of the liability for Hikida’s permanent total disability benefits to Costco.

Hikida petitioned the Workers' Compensation Appeals Board for review.

Last February, a WCAB panel rescinded Bushin's order and sent the case back to the judge to determine whether Hikida's claimed psyche condition had contributed to her level of permanent disability. It also directed Bushin to consider any other industrial causes of Hikida's disability.

Commissioner Marguerite Sweeney dissented, saying apportionment was improper because 100% of Hikida's total disability was from CRPS, which had been caused by the treatment of an industrial injury.

On remand, Bushin issued findings that Hikida had a 98% permanent disability.

A WCAB panel upheld that decision in October, but Sweeney once more dissented because she remained convinced that apportionment was inappropriate.

Hikida then petitioned the 2nd DCA for review, with the amicus support of the California Applicants' Attorneys Association. 

The 2nd DCA determined that the WCAB erred in allowing apportionment of Hikida’s award.

The court explained that the disability arising from Hikida’s carpal tunnel syndrome was apportionable between industrial and nonindustrial causes. However, the court said, her permanent total disability was not apportionable because it was not caused by her carpal tunnel, but by the CRPS that resulted from the medical treatment her employer provided.

While Costco would have no liability for any negligence in the provision of the medical treatment that led to Hikida’s development of CRPS, the court said Costco had to compensate Hikida for the disability caused by the condition.

The 2nd DCA certified the Hikida decision for publication, which made the ruling binding precedent for the WCAB and its administrative law judges.

In August, the California Chamber of Commerce and the California Coalition on Workers' Compensation filed a joint petition for depublication with the Supreme Court.  

The California Rules of Court allow any person to request that the Supreme Court order depublication of an opinion that had been certified for publication. Depublication means the decision will not be printed in the official California Appellate Reports, and it will not be citable as a rule of law in other cases.  

The California Applicants' Attorneys Association opposed the depublication request, and the Supreme Court denied the request on Wednesday. The court also considered whether to review the merits of the dispute and decided not to grant review.

To see the Supreme Court docket, click here.