Apportionment Now: Where We Are After Justice, Hikida, and Lindh
Randy H. Pollak, Esq.
Thousand Oaks, California
Fifteen years after full implementation of SB 899 and its "new regime" of apportionment law, one of the hottest litigated issues in workers’ compensation remains the scope of valid apportionment. Case in point: on May 27, 2020, the Sixth District Court of Appeal published a major apportionment decision in County of Santa Clara v. WCAB (Justice) (2020) 49 Cal.App.5th 605.
What is immediately important for the workers’ compensation practitioner is the Justice decision’s dramatic limitation of the potential scope of the Second District Court of Appeal’s decision in Hikida v. WCAB (2017) 12 Cal.App.5th 1249. Specifically, the Justice decision holds that apportionment is valid for permanent disability (PD) that resulted from industrial medical treatment. However, Justice also confirms (and narrows) the essential holding from Hikida, which is simply stated as, "Hikida precludes apportionment only where the industrial medical treatment is the sole cause of the permanent disability." (Justice, supra, 2020 Cal.App.LEXIS at p. 19.)