HENRY K. GAUS
San Jose, California
Should employers be concerned that workers’ compensation liability will mushroom as a result of the decision in Hikida v. Workers’ Compensation Appeals Board (2017) 82 Cal.Comp. Cases 679 regarding apportionment of permanent disability? Is Hikida a significant decision that changes the landscape of apportionment? While the argument can be made that both questions could be answered affirmatively, a careful review of Hikida suggests otherwise. Bertram Russell, in Chapter 4 of Mysticism and Logic, said that "Mathematics may be defined as the subject in which we never know what we are talking about, nor whether what we are saying is true." Similarly, when it comes to apportionment of disability, it remains to be seen whether we know what we are talking about and whether what is being said about Hikida and its impact is fact or fiction. The perception of Hikida will differ substantially between an employer and an injured worker.
Let’s begin by looking at the facts in Hikida and the conclusion Division Four of the Second Appellate District reached. Applicant was employed by Costco from November 1984 to May 2010 and developed a number of medical conditions, including carpal tunnel syndrome (the industrial injury). Applicant left work in May 2010 and had carpal tunnel surgery. After surgery, applicant developed chronic regional pain syndrome, or CRPS (the consequential, or secondary, injury), which caused debilitating pain in the bilateral upper extremities and severely impaired function. Applicant never returned to work. Id. at 681.