City of Petaluma v. Workers' Comp. Appeals Bd. of State

• Decision Date: 10 December 2018
• Docket Number: A153811
• Citation: 29 Cal.App.5th 1175,241 Cal.Rptr.3d 97
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF PETALUMA et al., Petitioners, v. The WORKERS’ COMPENSATION APPEALS BOARD OF the State of CALIFORNIA and Aaron Lindh, Respondents.

29 Cal.App.5th 1175

241 Cal.Rptr.3d 97

CITY OF PETALUMA et al., Petitioners,

v.The WORKERS’ COMPENSATION APPEALS BOARD OF the State of CALIFORNIA and Aaron Lindh, Respondents.

A153811

Court of Appeal, First District, Division 1, California.

Filed December 10, 2018

Mullen & Filippi, LLP, William E. Davis, Santa Rosa, for Petitioner City of Petaluma.

Ellen Sims Langille, San Francisco, for California Workers’ Compensation Institute as Amicus Curiae on behalf of Petitioner.

John Frederick Shields Jr., Santa Rosa, for Respondents Workers’ Compensation Appeals Board.

Law Offices of Linda J. Brown, Karina Kowler, San Rafael, for Respondent Aaron Lindh.

Gearheart & Sonnicksen, Mark Gearheart, Pleasant Hill, for California Applicants’ Attorney Association as Amicus Curiae on behalf of Respondent Aaron Lindh.

Banke, J.

INTRODUCTION

In 2004, the Legislature made comprehensive changes to the workers’ compensation law, one of which altered apportionment of permanent disability such that an employer is now liable only for the percentage of disability directly caused by the employment-related injury. In the instant case, the Qualified Medical Examiner (QME) concluded 85 percent of the claimant’s disability was due to a previously asymptomatic, underlying condition. The Administrative Law Judge (ALJ), however, determined no portion of the disability should be apportioned to that condition. The Workers’ Compensation Appeals Board (the Board) affirmed, stating the QME had "confused causation of injury with causation of disability." We granted the City’s petition for a writ of review and now annul the decision and order an apportioned award.

BACKGROUND

The parties stipulated that the claimant, Aaron Lindh, was employed as a law enforcement officer when he "sustained injury arising out of and in the course of employment to his left eye." More specifically, Lindh took three to six blows to the left side of his head while engaged in a canine training course. Afterwards, he "suffered severe headaches lasting between several hours to one or two days." Over a month later, while off-duty, Lindh suddenly lost most of the vision in his left eye.

Lindh saw two physicians, one at Kaiser and one at the University of California, San Francisco (UCSF). The Kaiser physician evaluated Lindh as having "a left central vein occlusion and retinal artery occlusion with afferent pupillary defect." The UCSF physician made "a diagnosis of combined central retinal vein occlusion /cilioretinal artery occlusion in the left eye." Neither physician believed the vision loss was related to the blows to his head.

Dr. David Kaye, a neuro-ophthalmologist and the QME who subsequently evaluated Lindh, described Lindh as having "lost the central vision and part of his peripheral vision." He stated in his report and testified at deposition that there were "five diagnoses" pertinent to Lindh—"Presbyopia. Hyperopia. Left ischemic optic neuropathy. Left vitreous fibrosis and some retinal hemorrhages. History of migraine." Dr. Kaye explained that presbyopia and hyperopia are conditions requiring the individual to wear reading glasses or "magnifying lenses." "[L]eft ischemic optic neuropathy" is "a condition in which the circulation to the nerve of the left eye was affected in effect causing a stroke." "[V]itreous fibrosis and some retinal hemorrhages," Dr. Kaye explained as, "when God makes the eye, he packs it full[ ] of jelly and the jelly sometimes collapses and is replaced with scar tissue as in this case."

Dr. Kaye also concluded, as had the other physicians, that Lindh’s "blood circulation to his left eye was defective." He stated Lindh "did not have any disability prior to receiving the blows to the head." And "[a]bsent the injury," he thought Lindh "most likely would have retained a lot of his vision in that eye," although he could not "guess" how much. Dr. Kaye agreed "it [was] possible that [Lindh] could have gone his entire life without losing vision." He also agreed, however, that even had Lindh not suffered the blows to his head, he still could have lost his vision "due to this underlying condition."

As to apportionment, it was Dr. Kaye’s "opinion that [Lindh’s] underlying vasospastic personality and vasculature placed him at high risk for damage to different parts of his body." He further explained: "So when you ask the question for the cause of injury, causation, I’m required to tell you that he does have an underlying condition, vasospastic type, body type. I’m also required to tell you that the injury contributed to his condition. ... [¶] With regard to the cause of the disability, the same analysis applies."

At a later point in his testimony, Dr. Kaye reiterated: "I’ve pointed out to both of you that he has a vasospastic-type personality with a long history of migraine that’s associated with this, and the majority of that is from his underlying condition and, yes, at the time of a stress in his life such as at work or being smacked in the head with some dogs, that places him at a much higher risk category and I’m comfortable in my own mind attributing that to the severe loss of vision. [¶] ... [¶] But not completely as I’ve tried to make clear." He subsequently repeated it was "unlikely" Lindh would have suffered a vision loss if he had not had the "underlying condition" of "vascular spasticity," a condition that is "rare."

Again, in discussing his initial apportionment of 90 percent (which he adjusted to 85 percent), Dr. Kaye stated, "90 percent [is] due to the underlying condition and 10 percent due to the stress of the injuries," the underlying condition meaning "[v]asospastic-migraine body type." He further agreed his opinion was to a reasonable medical certainty.

While Dr. Kaye had initially apportioned 90 percent of the cause of the disability to Lindh’s underlying condition and 10 percent to "the results of the trauma," after reviewing "all the previous data again," he stated both at deposition and in a follow-up to his report that: "[I]t is my professional opinion that 85% of the patient’s permanent disability is due to his old condition and 15% of the applicant’s permanent disability is due to his industrial injury."¹ (Underscoring omitted.)

The parties stipulated "the medical record, not including apportionment, rates 40 percent permanent disability, and with apportionment, rates six percent permanent disability."

The ALJ rejected Dr. Kaye’s apportionment analysis, concluding it was not supported by substantial evidence, and found Lindh had 40 percent permanent disability without apportionment between his underlying condition and the work-related injury.

After granting the City’s petition for reconsideration, the Board affirmed the ALJ’s decision. As the Board saw it, "Dr. Kaye’s opinion establishes that applicant’s preexisting hyperreactive type personality and his asymptomatic and ... preexisting systemic hypertension and vasospasm were mere risk factors that predisposed him to having a left eye injury, but the actual injury and its resultant disability (i.e., the left eye blindness) were entirely caused by industrial factors." (Italics omitted.) "[A]n opinion that bases apportionment upon the percentage to which non-industrial risk factors contributed to causing the injury is not substantial evidence that legally justifies apportionment." (Italics omitted.) The Board concluded Dr. Kaye had "confused causation of injury with causation of disability" and that "there is no legally valid basis for apportionment in this case."

DISCUSSION

"We review the Board’s factual findings for substantial evidence, but we review its legal decisions de novo." ( City of Jackson v. Workers’ Comp. Appeals Bd. (2017) 11 Cal.App.5th 109, 114, 216 Cal.Rptr.3d 911 ( Jackson ).) If " ‘a workers’ compensation decision rests on the Board’s erroneous interpretation of the law, the reviewing court will annul the decision.’ " ( Acme Steel v. Workers’ Comp. Appeals Bd . (2013) 218 Cal.App.4th 1137, 1141, 160 Cal.Rptr.3d 712 ( Acme Steel ).)

The 2004 Amendments Concerning Apportionment

Prior to 2004, "[a]pportionment based on causation was prohibited." ( Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1326, 57 Cal.Rptr.3d 644, 156 P.3d 1100 ( Brodie ).) Thus, "to the extent that a subsequent industrial injury exacerbated, accelerated, aggravated, or ‘lit up’ an applicant’s preexisting condition, the employer was liable for the resulting disability, without apportionment." ( Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617, fn. 9 ( Escobedo ).)

Accordingly, prior to 2004, "employers were liable for the entire disability if the disability arose in part from an interaction between an industrial cause and a nonindustrial cause, but the nonindustrial cause alone would not have given rise to a disability. [Citation.] Thus, an employer was liable for the entire disability if an industrial injury aggravated a previously existing nonindustrial condition." ( Jackson, supra , 11 Cal.App.5th at p. 115, 216 Cal.Rptr.3d 911.) For example, in Zemke v. Workmen’s Comp. Appeals Bd . (1968) 68 Cal.2d 794, 796, 69 Cal.Rptr. 88, 441 P.2d 928 ( Zemke ), decided before the 2004 amendments, the claimant suffered an injury to his back when he lifted a barrel at work. Three doctors agreed the claimant had a preexisting "arthritic condition" that was asymptomatic before the injury. ( Id . at pp. 797–798, 69 Cal.Rptr. 88, 441 P.2d 928.) The doctors variously described the preexisting condition as osteoarthritic changes and degenerative disc disease. ( Ibid. ) The Board, following the doctors’ opinion on apportionment, concluded 50 percent of the claimant’s disability was attributable to the preexisting condition. ( Id . at p. 799, 69 Cal.Rptr. 88, 441 P.2d 928.) The Supreme Court annulled the Board’s decision, holding " ‘ "the employer takes the employee subject to his condition when he enters the employment, and that therefore compensation is not to be denied merely because the workman’s...