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The Sections of The State Bar of California are pleased to present the 2017 Sections Convention – a networking and learning opportunity planned especially for California attorneys and legal professionals.
Friday-Saturday, August 18-19, 2017
Sheraton San Diego Hotel & Spa
1380 Harbor Island Drive
San Diego, CA 92101
You can now register online for this program.
This inaugural event is the new platform for the State Bar Sections’ stellar programs and events previously offered at The State Bar of California Annual Meeting.
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By Julius Young
Legal battles over apportionment are one of the staples of workers’ comp disputes. And certain cases are important enough and sufficiently well known to make it into the California workers’ comp pantheon.
Escobedo….Benson….Brodie….and now Hikida?
The case is Maureen Hikida v. WCAB (Costco), a June 2017 opinion from the California Court of Appeal Second District, Division Four.
A copy of the Hikida case can be found at the end of this post.
Ms. Hikida, a 16 year clerical employee of Costco, developed carpal tunnel syndrome. Surgery went poorly, and she developed a painful and debilitating post-surgical condition known as chronic regional pain syndrome, also known as CRPS.
The AME found that her carpal tunnel condition was industrial and that she was permanently and totally disabled. But the AME apportioned one-tenth of the permanent disability to non-industrial factors. The workers’ comp judge made a finding of a 90% rating due to industrial factors after apportionment (i.e. 100% less 10% non-industrial factors).
After an initial finding , appeal, remand, and second WCJ finding, the WCAB panel majority eventually upheld the apportionment determination. However, the dissenting WCAB commissioner argued that there should be no apportionment.
The Hikida Court of Appeal also finds no applicable apportionment.
The key here is that the medical evidence showed that Ms. Hikida’s permanent total disability was caused by the CRPS, not by the underlying carpal tunnel.
The Hikida court phrased the issue as follows: “The issue presented is whether an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment.”
The court holds that the disability caused by the medical treatment should not be apportioned:
“Here, there is no dispute that the disabling carpal tunnel syndrome from which petitioner suffered 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 appellant with a far more disabling condition — CRPS — that will never be alleviated. California workers’ compensation law relieves Costco of liability for any negligence in the provision of the medical treatment that led to petitioner’s CRPS. It does not relieve Costco of the obligation to compensate petitioner for this disability without apportionment.
Our review of the authorities convinces us that in enacting the “new regime of apportionment based on causation,” the Legislature did not intend to transform the law requiring employers to pay for all medical treatment caused by an industrial injury, including the foreseeable consequences of such medical treatment.”
This ruling is largely predicated on the concept that under a long line of California cases injuries and aggravations due to industrial medical treatment are within the exclusive jurisdiction of the WCAB. Workers can not sue the employer and insurer for medical negligence or poor outcomes.
Defendant Costco will undoubtedly attempt to interest the California Supreme Court in reviewing the decision.
Assuming Hikida stands, however, the question is whether this case will have application to a wide range of situations. Will it apply in situations where a claimant has become opioid dependent as a result of treatment? Cases of adverse medication reactions? Cases where surgical infections and other surgical complications lead to dire circumstances?
And does it have any implication for “Steinkamp” type situations, where the ratable permanent disability is not due to the underlying joint that was was injured and replaced, but rather to the artificial joint that replaced the injured joint?
And could the case have implications where treatment was refused or neglected, with resulting complications that go far beyond the original body part injury?
In time the courts will sort out these questions.
Meanwhile, the California workers’ comp community should get familiar with this case.
© Copyright 2017 by Julius Young. All rights reserved. Reprinted with permission.
October 6, 13, 20, 2017
Are you taking the workers’ compensation specialization exam this year? Has it been awhile since you’ve taken a timed essay? Do you think IRAC is a foreign country? If so, this webinar is a must have for your exam preparation. Each week, a certified workers’ compensation specialist will cover four of the twelve essays contained in the examination preparation packet released by the specialization committee. The presenters will go over the essay question and present a model answer to the question. They will cover issue spotting for the essay exam as well as the basic substantive law behind each question.
A copy of the practice exam can be found by clicking here.
Week 1 (Oct. 6) will cover essays 1 through 4. Click Here
Week 2 (Oct. 13) will cover essays 5 through 8. Click Here
Week 3 (Oct. 20) will cover essays 9 through 12. Click Here
Attendees are encouraged to complete the essays on their own, under test conditions, prior to each webinar.
Speakers: Kenneth Sheppard, David Skaggs, and Yvonne Lang
Presented by the Workers' Compensation Section
Saturday, October 7, 2017
Renaissance Long Beach Hotel
111 E. Ocean Blvd.
Long Beach, CA 90802
6.0 hours of this program meets the specialization requirement of “mechanics of rating permanent disability requirement” for the certified workers’ compensation specialty.
Save the date! More information, including online registration and speaker info will be posted on this web page in the future.
The State Bar offers a variety of CLE programs on all aspects of workers’ compensation, including a variety of seminars and webinars on SB863 at a reasonable price. Programs may be accessed from the convenience of one’s home or office and qualify for MCLE credit. All programs can be accessed at:
The self study CLE programs in the members only area are currently being refreshed. Please check back in May for updated programs:
State Bar Workers’ Comp Section members may also use this link to access a plethora of our most popular articles from our publications.