Barbara Justice was a workers’ compensation claims adjuster for the County of Santa Clara. She fell at work in 2011 and injured her left knee. She later developed problems in her right knee, which was found to be a compensable consequence of the injury to her left knee. In 2012, Justice had total knee replacement surgery on the right knee. In 2013, she had total knee replacement surgery on her left knee.
The AME testified that a 2012 X-ray of her knees showed “marked osteoarthritis” of the knees. An MRI conducted in 2012, showed that she had suffered a medial and lateral meniscal tear as a result of the fall at work and also revealed significant preexisting degeneration, all of which predated the fall at work: an “old” tear of the anterior cruciate ligament, “marked loss of articular cartilage in the medial compartment,” “moderate loss of articular cartilage in the lateral compartment,” and “moderate loss in the patellofemoral joint.” There was also scar tissue on both knees indicating that Justice had undergone a “significant open procedure” at some point in the past.
The agreed medical examiner thought the permanent disability should be apportioned 50/50,
The workers’ compensation judge then stated that prior to the decision in Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 (Hikida), he would have issued a decision awarding permanent disability with 50% apportionment based upon the AME’s opinion. However, Hikida precluded apportionment in this case because the ratings were based upon having total knee replacements. Since both were the result of medical care, he awarded permanent disability of 48 percent without apportionment.
The WCAB denied reconsideration (except to correct a clerical error). However the Court of Appeal reversed in the Published opinion of County of Santa Clara v WCAB and Barbara Justice.
The Court of Appeal found the case of City of Petaluma v. Workers’ Comp. Appeals Bd. (2018) 29 Cal.App.5th 1175, 1181-1182 to be instructive. In that case, police officer Aaron Lindh was engaged in a canine training exercise when he took blows to the left side of his head . He first suffered severe headaches, and weeks later “suddenly lost most of the vision in his left eye.” The QME said that Lindh had a congenital abnormality that caused poor blood circulation in his left eye. Without the injury, he most likely would have retained a lot of his vision in that eye. But that it was unlikely Lindh would have suffered a vision loss if he had not had the ‘underlying condition.Thus, the examiner apportioned 85 percent of the permanent disability to the preexisting condition, and 15 percent to the industrial injury.
As in Petaluma, the injured worker in the instant case had an extensive preexisting pathology that when combined with an industrial injury, led to permanent disability. The preexisting pathology was well documented. “The workers’ compensation judge and the Board believed that Hikida dictated a different result. Not so.” … “, the Hikida court’s conclusion that there should be no apportionment makes sense only because the medical treatment in Hikida resulted in a new compensable consequential injury, namely CRPS, which was entirely the result of the industrial medical treatment.”