ADJ10048474 — California WCAB decision

What the panel ordered

Findings and Award of March 17, 2020 affirmed; petition for reconsideration denied

Petition for reconsideration filed by applicant challenging apportionment medical opinion; WCJ decision affirmed after reconsideration

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentDefendant prevailedright knee · left knee

The Appeals Board found Dr. Han's medical reports substantial evidence supporting 60% apportionment to non-industrial factors, affirming the WCJ's decision and rejecting the applicant's contention based on Hikida.

From the decision · page 1In the Findings and Award of March 17, 2020, the Workers' Compensation Judge ("WCJ") found, in pertinent part, that applicant sustained industrial injury to her right knee and left knee on March 6, 2015, that Dr. James Han is the Panel Qualified Medical Evaluator ("PQME"), and that the injury resulted in permanent disability of 21%, after 60% apportionment to "other factors" of permanent disability under Labor Code section 4663(c).

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604

Medical-legal report must describe in detail the exact nature of the apportionable disability and set forth the basis for the opinion

Applied to evaluate Dr. Han's apportionment opinion as substantial evidence

From the decision · page 7The basis for apportionment must be clear; the medical-legal report must "describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion." Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604, 621. This means that the medical-legal report must explain the nature of the non-industrial factor, and how and why the non-industrial factor is responsible for part of the disability. Id. at 622. In his report dated report dated April 5, 2019, Dr. Han apportioned 60% of the disability to pre-existing and 40% to the industrial injury. He explained that Applicant had prior surgeries, fell off a curb in 2016, and had obesity resulting in degenerative changes that made the bilateral total knee replacement surgeries necessary, which is the basis for the permanent disability. (Joint Exhibit CC)

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249

Employer responsible for medical treatment and consequences without apportionment when treatment is sole cause of disability

Distinguished and not adopted in this case due to pre-existing conditions contributing to disability

From the decision · page 3However, we do not adopt or incorporate the discussion of Hikida found in the WCJ's Report. In Hikida, the injured employee sustained industrial injury in the form of carpal tunnel syndrome, and she underwent surgery to alleviate that condition. The surgery was unsuccessful and resulted in the injured employee developing chronic regional pain syndrome ("CRPS"). The CRPS left her permanently and totally disabled. On one hand, the Agreed Medical Evaluator ("AME") concluded that the permanent and total disability was entirely due to the injured employee's new CRPS condition. On the other hand, the AME found apportionment based on his opinion that 10% of the disability resulting from the original carpal tunnel syndrome condition was non-industrial. On those facts, the Court of Appeal framed the issue as "whether an employer is responsible for both the medical treatment and any disability arising directly from unsuccessful medical intervention, without apportionment." (Hikida, supra, 12 Cal.App.5th at 1260, italics added.) Although the Court answered yes to that specific question, the Court further explained in pertinent part: "Nothing in the 2004 legislation [broadening application of apportionment] had any impact on the reasoning that has long supported the employer's responsibility to compensate

ADJ10048474 · June 15, 2022

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