On December 10, 2018, The Court of Appeal, First Appellate District, filed its opinion on the case City of Petaluma (Lindh) v. WCAB, and certified it for publication.
This case concerns a matter of significant importance to the insurer, employer and claims industries: apportionment to a non-industrial pre-existing and asymptomatic condition.
A law enforcement officer, Aaron Lindh, sustained an injury to his left eye following an incident during a canine training course in which he suffered multiple blows to the left side of his head. He experienced severe headaches and lost most of the vision in his left eye.
The Qualified Medical Examiner, Dr. David Kaye, found Lindh to have had a significant pre-existing condition that did not cause disability prior to the industrial injury, yet he apportioned 85% of Lindh’s permanent disability to that rare condition known as vascular spasticity. After apportionment Lindh’s 40% permanent disability rated 6%.
The Workers’ Compensation Judge disagreed with Dr. Kaye’s opinion, finding that the QME’s conclusion was not based on substantial medical evidence and awarded Lindh 40% permanent disability. The WCAB affirmed the judge’s decision, stating that the QME confused causation of injury with causation of disability. The Court of Appeal granted review.
The Court outlined in great detail the history of apportionment both prior to the enactment of SB 899 in April 2004 and afterward. It first noted that prior to the passage of SB 899 an employer was liable for disability without apportionment where a subsequent injury aggravated an asymptomatic pre-existing condition.
Citing Escobedo, the Court stated that the Board can apportion to factors such as the natural progression of non-industrial conditions/diseases, a pre-existing disability, or a post-injury disabling event. However after the enactment of SB 899, apportionment to asymptomatic prior conditions, pathology, and retroactive prophylactic work preclusions is allowed pursuant to Labor Code §§4663 and 4664.
The Court also cited Escobedo in stating that while the cause of injury and cause of permanent disability are not necessarily the same, they can be.
Relying on the opinion of the PQME the Court found that the doctor determined that in this case the cause of injury and the cause of disability was the same and that this is permissible. The court noted that the PQME clearly explained the distinction between the two in his reporting and cross-examination testimony.
WHAT THIS MEANS FOR YOU
Development of the applicant’s past medical history is crucial in determining a basis for apportionment to pre-existing conditions. This case makes it clear that an underlying asymptomatic condition may be a proper basis for apportionment and the doctor does not have to prove that the condition is degenerative in nature, or would have progressed naturally as long as the doctor’s opinion is supported by substantial medical evidence.
Amanda Rocha, Attorney
GMK, San Luis Obispo