The First Appellate District Court of Appeals has reversed the Workers’ Compensation Appeals Board (WCAB)’s decision on another high profile apportionment case, finding the WCAB was not applying the correct standard for apportionment under Labor Code Section 4663 to nonindustrial factors of impairment. In City of Petaluma v. WCAB (Lindh), the Appeals Court ruled that the WCAB was not applying the correct standard to an eye injury case. After analyzing the long history of case law on the issue of apportionment, including the key cases of Escobedo, Brodie and the recent decision of City of Jackson (Rice), the court concluded that apportionment to pre-existing asymptomatic conditions or pathology was permissible if it was a contributing cause of the disability. The result was 85% apportionment to non-industrial factors.
This holding supports what the defense bar has long been saying about apportionment to asymptomatic conditions since the Escobedo case, and builds on the holding in Jackson. To find otherwise would ignore the Legislature’s intent on changing apportionment law when it enacted SB899. Furthermore, this holding suggests that an apportionment analysis is required when there are multiple potential causes of a disability. Contrary to what the applicant’s bar may argue, this is not apportionment to genetics, since the Court clearly allowed apportionment to pre-existing pathology. Legal education for medical evaluators would help support this decision and reduce conflict.