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Risk Factors and Apportionment City of Pealuma (Lindh) v. WCAB
By A.J. Driscoll
On December 10, 2018, the First District Court of Appeal filed an opinion in the case of City of Pealuma (Lindh) v. WCAB. This case and its holding are of importance on the evolving issue of apportionment.
As a factual background, this case involved a Petaluma police officer who was working a detail as a K-9 handler. While participating in a canine training course, the applicant was struck in the head on multiple occasions by his dog and suffered some headaches in the days that followed. Over one month later, the applicant, while off duty, experienced a loss of vision in his left eye. The applicant sought treatment, and the blindness was attributed to an underlying condition that was lit up by the blows to the head.
The applicant was diagnosed with a condition causing defective blood flow to his eye called vasospastic personality and vasculature, and as a result suffered an ischemic optic neuropathy. The applicant also had a history of migraines for the prior five years that were related to this condition.
The applicant’s PQME found that 90% of the disability was attributable to the underlying preexisting condition, and the remaining 10% was associated with the industrial blows to the head. Later on, this would be augmented to 85%/15%. At the trial level, the WCJ held that the applicant’s apportionment was not substantial medical evidence due to the incorrect application of legal theory of apportionment. The holding was filed for Reconsideration to the WCAB.
On appeal, the WCAB upheld the WCJ’s decision. The Court cited that there was an issue regarding the “causation of permanent disability v. the causation of the injury.” The WCAB noted that it was appropriate to determine the amount of disability directly caused by current industrial source. The Court expanded noting that the apportionment to the percentage of non-industrial risk factors contributing to causing the injury was not substantial medical evidence and that in the end, the PQME provided no non-industrial causative factors to parcel out. This left only the blow to the head on an industrial basis.
Following the Decision on Reconsideration, the Defense appealed to the 1st DCA. On appeal, the DCA found that the WCJ and the WCAB had not appropriately applied the amendments under Labor Code Section 4663 and 4664, and in line with the decisions in Escobedo and its progeny. The DCA found that the apportionment determined by the PQME was appropriate and was to be reinstated.
The Court found that the PQME understood the required distinction between the causes of an injury and the causes of a disability, and that the PQME found that the same analysis applied to both in this case. The Court found that this did not change the fact that the applicant had an underlying condition, along with the precipitating event of the blow to the head, that was the cause of the impairment.
Even if merely a “risk factor,” the Court noted that the PQME opined that the underlying condition was largely the cause of the loss of vision and that this opinion was consistent with the opinion of treating doctors through the case. Here, the Court concluded that the PQME’s report was substantial medical evidence on the issue of apportionment and ordered the case back down to the trial level to apply the apportionment.
The Lindh case is a positive extension of the evolving case law surrounding apportionment and is a useful case for defendants regarding industrial injuries. Following the recent cases of Rice v. City of Jackson, a 2018 case which allowed for apportionment to genetic conditions, this holding is a tool that can be utilized to limit the amount of disability for an injured worker.
This case’s importance can be reflected in the types of “risk factors” that are seen on a fairly common basis in the administration of our cases, including pre-existing diabetes, hypertension, obesity or other issues that pre-date an industrial event. This case will allow the medical legal evaluators to determine what percentage of disability is the direct result of the industrial event and what percentage of the disability was caused by other factors.
Moving forward, the issue will be whether there is “substantial medical evidence” to support apportionment, rather than the previously applied test of “immutability.” If an applicant’s disability is the result of a work injury and a pre-existing condition, there is now a requirement to provide an apportionment determination. It still remains the Defendant’s burden to prove apportionment, however, there now appears to be a more manageable path following this holding.
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