Randy H. Pollak, Esq.
Thousand Oaks, California
Fifteen years after full implementation of SB 899 and its "new regime" of apportionment law, one of the hottest litigated issues in workers' compensation remains the scope of valid apportionment. Case in point: on May 27, 2020, the Sixth District Court of Appeal published a major apportionment decision in County of Santa Clara v. WCAB (Justice) (2020) 49 Cal.App.5th 605.
What is immediately important for the workers' compensation practitioner is the Justice decision's dramatic limitation of the potential scope of the Second District Court of Appeal's decision in Hikida v. WCAB (2017) 12 Cal.App.5th 1249. Specifically, the Justice decision holds that apportionment is valid for permanent disability (PD) that resulted from industrial medical treatment. However, Justice also confirms (and narrows) the essential holding from Hikida, which is simply stated as, "Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability." (Justice, supra, 2020 Cal.App.LEXIS at p. 19.)
In review, perhaps the most important takeaway from the Justice decision for the workers' compensation system may be a seemingly durable apportionment framework going forward. This article introduces that point for discussion. For an expanded analysis, please check out my webinar presented on June 26, 2020, on this topic, at calawyers.org/event/webinar-apportionment-now-where-we-are-after-justice-hikida-and-lindh/.
The foundation of apportionment law is at Labor Code section 4663, specifically subsection (a), which provides: "Apportionment of permanent disability shall be based on causation." Furthermore, at (c), the Labor Code develops it with:
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, including prior industrial injuries.
This statement of apportionment law was a radical change from what existed prior to SB 899 (passed in 2004.) The breadth of change was reviewed in the California Supreme Court case of Brodie v. WCAB (2007) 40 Cal.4th 131, noting that prior to SB 899, apportionment "based on causation was prohibited." (Id. at p. 1326.) Rather,
the new approach to apportionment is to look at the current disability and parcel out its causative sources-nonindustrial, prior industrial, current industrial-and decide the amount directly caused by the current industrial source.
(Id. at p. 1328.)
In the aftermath of passage of SB 899 and the new Labor Code section 4663, the Workers' Compensation Appeals Board (WCAB) provided further guidance on its scope and applicability with its major en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604. Several notable statements of law were provided in that decision, including but not limited to:
• "Physician must apportion to causation of PD, not causation of the injury." (Id. at p. 611.)
• Apportionment can be based on any "other [nonindus-trial] factor," either pre- or post-injury." (Id. at p. 614.)
• Apportionment can be made to pathology and asymptomatic prior conditions. (Ibid.)
• Evidence of prior disability or modified work is not required. (Ibid.)
The history of apportionment law in the ten-plus years after SB 899 remained contentious amongst the industry participants. Parties, doctors, judges, and the WCAB, attempted to adapt to this new regime, with relative success. The limited number of published Court of Appeal decisions in that time addressing the scope of valid apportionment do not very well reflect the extent of those "on the ground" struggles, virtually all siding with the employer. (See, e.g., City of Jackson (Rice) (2017) 11 Cal.App.5th 109; Acme Steel v. WCAB (Borman) (2013) 218 Cal.App.4th 1137; Benson v. WCAB (2009) 170 Cal. 4th 1535; E.L. Yeager Construction...
