Only Half of Employee’s Knee Disability Was Work-Related

By Joanne Deschenaux July 6, 2020
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​Because only half of an employee's total permanent disability was caused by a fall at work, and the remaining half was due to degenerative conditions, a California appeals court reversed a decision by the state's workers' compensation board, which granted a 100 percent disability award. The permanent disability should have been apportioned between industrial and nonindustrial causes, the court ruled.

The claimant was employed as a workers' compensation claims adjuster for Santa Clara County from November 1991 until she retired in December 2016. On Nov. 22, 2011, she fell at work and injured her left knee. She later developed pain and problems in her right knee, which were found to be a compensable consequence of the injury to her left knee. In June 2012, the claimant had total knee-replacement surgery on the right knee. In September 2013, she had total knee-replacement surgery on her left knee.

The claimant was examined by an orthopedic surgeon, who testified in a hearing before a workers' compensation judge that an X-ray of the claimant's knees taken Nov. 28, 2011, showed osteoarthritis. An MRI later showed a medial and lateral meniscal tear as a result of the fall at work. The MRI also revealed significant pre-existing degeneration, which predated the fall at work.

Based on the employee's medical history, the surgeon testified that there was significant pre-injury degeneration in both knees. He apportioned 50 percent of the bilateral knee disability to the nonindustrial, pre-existing degeneration.

The workers' compensation judge determined that the claimant had sustained permanent partial disability of 48 percent, which was worth $59,110. The judge then stated that prior to a California appeals court's decision in Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249, he would have issued a decision awarding permanent disability with 50 percent apportionment based on the surgeon's opinion.

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However, the judge said that he understood Hikida to preclude apportionment in this case and awarded permanent disability with no apportionment. The Workers' Compensation Appeals Board (WCAB) affirmed this decision, and the county sought review in the appellate court. The appeals court reversed the WCAB's decision, ruling that the Hikida decision had been incorrectly applied to this case, and the disability should have been apportioned.

Cause of Disability

In Hikida, the worker received a diagnosis of carpal tunnel syndrome, which was caused by both work-related and non-work-related factors, but the condition was not totally disabling. She underwent surgery to treat the condition, but the surgery actually made it worse, resulting in total disability.

The appeals court in that case ruled that the worker was entitled to a permanent disability award without apportionment because the surgery, not the underlying condition, was the actual cause of the total disability.

However, in contrast to the situation in Hikida, the claimant's surgery in this case was successful and significantly increased the claimant's ability to walk. The permanent disability was caused not by the medical treatment, as happened in Hikida, but by both the work-related and non-work-related factors.

The law regarding apportionment, the court noted, requires that the disability "be sorted among direct and indirect causal factors." In this case, there was unrefuted, substantial medical evidence that the claimant's permanent disability was caused, in part, by an extensive pre-existing knee pathology. Apportionment was therefore required, the court concluded.

County of Santa Clara v. Workers' Comp. Appeals Bd., Calif. Ct. App., No. H046562 (May 27, 2020).

Professional Pointer: As this case shows, when read along with the Hikida case, apportionment of permanent disability depends on the cause of the disability and not on the cause of the injury.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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