Hikida's New Standard of Apportionment -A Defense Perspective

Written by Lauren Moon

In Hikida vs. WCAB (2017) 12 Cal.App.5th 1249, the Court of Appeal handed down a decision that altered the state of non-industrial apportionment as we knew it. The Court in Hikida held that the employer is responsible for medical treatment and disability caused by unsuccessful medical treatment without apportionment. 


In 2004, the legislature amended and enacted new law confirming that apportionment shall be based on causation. The employer’s liability was now limited to disability caused by the direct result of injury arising out of and in the course of employment (See Labor Code Section 4663 and 4664). Hikida’s broad sweeping holding, appears to have changed the character of this standard to some degree.


The Facts


Maureen Hikida worked for Costco Wholesale Corporation (Costco) for more than 25 years performing clerical work. She sustained injury to a number of body parts as the result of a cumulative trauma. Most importantly she was diagnosed with carpel tunnel syndrome for which she underwent carpel tunnel surgery. After surgery, Ms. Hikida developed Complex Regional Pain Syndrome (CRPS).  Agreed Medical Evaluator, Dr. Chester Hasday concluded that the failed carpel tunnel surgery caused CRPS which rendered her totally permanently disabled. With regard to apportionment, Dr. Hasday concluded that Ms. Hikida’s carpel tunnel syndrome was 90% due to industrial factors and 10% due to non-industrial factors.


The Workers Compensation Judge issued an Award for 90% Permanent Disability, which was upheld by a three-member panel of the Workers’ Compensation Appeals Board. The Court of Appeal reversed the decision and remanded the case for an Award of permanent disability without apportionment. Essentially, the Court reasoned that Ms. Hikida’s Permanent Disability  was caused by the unsuccessful industrial medical treatment (carpel tunnel release surgery) not the underlying medical condition. Because industrial medical expenses are not apportionable, the employer should also be responsible for the consequences of medical treatment without apportionment.


The Reasoning


The justification for the Court’s decision in Hikida reached back to Grando v. WCAB (1968) 69 Cal.2d. 399, which held that medical treatment costs could not be apportioned. The Granado court explained that allowing apportionment of medical treatment would restrict access to medical treatment because some employees could not afford to pay their share and employers may refuse to pay until issues of apportionment were litigated and resolved.


The Hikida Court determined that the enactment of laws in 2004 requiring that apportionment be based on causation did not change the rationale established by Granado and did not absolve the employer from paying for all medical treatment caused by an industrial injury, including the foreseeable consequences of medical treatment.


The Result


As a result of the Hikida decision, applicant attorneys are sending interrogatories and scheduling cross examinations of physicians to establish that an injured worker’s disability is caused by industrial medical treatment and therefore cannot be apportioned to non-industrial factors that may have caused the underlying medical condition. Apart from the ramifications of unsuccessful surgery, you can expect these claims to be made when medications cause cognitive impairment or internal complications, when applicant develops failed back syndrome post-operatively, or when an injury occurs during physical therapy, etc.


Our Move


It is important to note, however, that the holding in Hikida was limited to disability caused by unsuccessful medical treatment. The AMA Guides 5th Edition, includes a multitude of diagnosis related impairment ratings, that assign impairment for surgical procedures, even when the surgery was a success. For injuries to the spine, applicant is entitled to a rating of Diagnosis Related Estimate (DRE) Category IV if he or she has had spinal fusion surgery. Likewise, a knee meniscectomy results in a whole person impairment rating of at least 1%. Arguably, these are instances where Permanent Disability is directly caused by the industrial medical treatment, the surgical procedure. We can anticipate the argument that apportionment should not apply in these instances. We will argue that the application of Hikida should he confined to instances where disability is caused by unsuccessful medical treatment.


Moving forward, it will be important to distinguish between optimal and sub-optimal results of medical treatment where the application of Hikida is concerned. If a doctor states that medical treatment caused the disability, make sure you have the doctor state whether the surgery was had its intended result. But even where unsuccessful medical treatment causes the impairment, look for other factors that contribute to the disability and may still account for apportionment. Most importantly, be able to identify where non-industrial apportionment is vulnerable so that we can make informed decisions about case handing.


The breadth of Hikida has yet to be defined. We will know more as these apportionment issues are litigated and new case law is birthed.


Lauren Moon is a trial attorney in the Gilson Daub Inland Empire office covering WCAB venues in Pomona, Riverside and San Bernardino.