On March 6, 2015 Cristina Jackson was working as a package handler for FedEx Ground Package System, Inc. when she sustained injury arising out of and in the course of employment to her right knee and left knee. The employer accepted the claim and provided medical treatment and indemnity benefits.
Dr. Han reported in the case as a QME. He diagnosed her with bilateral post-traumatic osteoarthritis of the knee post knee replacement, internal derangement of the right knee with lateral meniscus tear and internal derangement of the left knee with lateral and medial meniscus tear. He described Applicant’s medical history which included prior bilateral meniscectomies in 1995 and 1996 and a left ACL reconstruction in 1992.
In his April 5, 2019 report, Dr. Han apportioned 60% of the disability to pre-existing and 40% to the industrial injury. He explained that Jackson 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.
After a trial on the issue of permanent disability, the WCJ found that the injury resulted in permanent disability of 21%, after 60% apportionment to “other factors” of permanent disability under Labor Code section 4663(c)
In her Petition for Reconsideration, Jackson contends that the medical opinion of Dr. Han is not substantial evidence of apportionment under the requirements of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [Appeals Board en banc] and that since applicant’s permanent disability rating is based on her bilateral knee replacement surgeries necessitated by the industrial injury, she is entitled to an unapportioned award pursuant to Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679].
The WCAB panel affirmed the apportionment, however it clarified the WCJ’s discussion of Hikida in the panel decision of Jackson v FedEx ADJ10048474 (June 2022)
After the panel concluded that “Dr. Han’s three medical reports, taken together, are substantial evidence justifying the WCJ’s determination that 60% of applicant’s permanent disability is caused by non-industrial ‘other factors’ under Labor Code section 4663(c)” it went on to review the Hikida decision in greater detail.
“Dr. Han convincingly explained that apportionment of the need for those surgeries applied equally to apportionment of the permanent impairment. However, we do not adopt or incorporate the discussion of Hikida found in the WCJ’s Report.”
The panel went on to explain that “the Hikida principle is not limited to situations involving failed treatment or new injuries. In County of Santa Clara v. Workers’ Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605, 615 [85 Cal.Comp.Cases 467], however, the Court of Appeal does seem to have made an attempt to limit Hikida, with the Court in Justice stating: ‘Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability.’ ” (Italics added.)
“The instant case is more like Justice than Hikida. In Hikida, the injured employee developed the entirely new medical condition of CRPS following her treatment and surgery, whereas here, as in Justice, the applicant had a significant prior history of the same knee problems and degenerative conditions, some of them non-industrial, which continued to the date of injury.”