Workers Comp Zone


Tomorrow the California Court of Appeal 1st District will be hearing oral argument in San Francisco on an important case on apportionment, City of Petaluma V. WCAB (Lindh).

The case may have important implications for how the courts will handle issues of causation of injury versus causation of disability, and what the rules are where a worker has an underlying condition that was not yet disabling but which makes him more susceptible to adverse consequences from an injurious event.

The case involved an officer who was repeatedly struck in the head during training with a dog as part of his canine officer training. Lindh complained of mild headaches before the work event but after the work incident suffered severe headaches and eventual total vision loss in his left eye.

Lindh was later determined to have a vasospastic condition affecting the blood vessels in his left eye, which  predisposed him to loss of vision in the eye. However, the QME conceded that it was speculative to say whether the underlying condition would have progressed to total vision loss.

The trial judge followed the opinion of the QME, apportioning 85% to non-industrial and 15% to industrial.

The trial judge summarized the facts as follows:

“[Applicant had] an increased risk of catastrophic failure [and] a congenital, pre-existing, asymptomatic problem affecting the blood vessels in his left eye. This congenital abnormality created a greater risk that he could suffer a sudden and catastrophic loss of blood flow in his left eye as a result of trauma. The injured worker suffered blows to the head that likely would have had no effect on an individual without the same type of genetic predisposition.In [applicant’s] case, however, these relatively minor blows caused a catastrophic injury — complete loss of vision in his left eye.”

This was reversed by the WCAB panel of Razo, Lowe and Brass (see link below) which found that the disability was 100% industrial. The WCAB believed that the apportionment was improperly based on apportionment of injury rather than apportionment of disability.

Thereafter the City of Petaluma filed a writ petition, which was granted by the Court of Appeal, setting up the pending clash. Stakeholders such as CAAA and CWCI have weighed in with amicus briefs (see below).

CWCI’s brief, filed by Ellen Langille, frames the issues as whether the “eggshell skull” rule survives in California workers’ comp law after the SB 899 apportionment statute reforms of 2004. CWCI cites the Brodie Supreme Court decision in which the court noted that:

“The new approach to apportionment is to look at the current disability and parcel out its causative sources — nonindustrial, prior industrial, current industrial — and decide the amount directly caused by the current industrial source.”

The brief filed by CWCI distinguishes “risk factor” apportionment from the situation in Lindh, stating that:

“Amici curiae herein do not argue that applicant’s hypertension, vasovascular spasticity, and left central vein occlusion were merely “risk factors” that made him more susceptible to a spontaneous loss of vision; under such circumstances, no apportionment would be permitted. Instead, the medical evidence in this case shows that the industrial event aggravated his underlying condition and thus applicant’s underlying pathology represents an actual, current, and contributing cause of his overall permanent disability following the injury.”

CAAA’s brief, filed by applicant attorney Mark Gearheart, argues that the WCAB was correct in rejecting the apportionment, further arguing that the apportionment was as to injury rather than apportionment of disability.

Noting that under Labor Code Section 4664 an employer is liable for the percentage of permanent disability directly caused by the injury, the CAAA brief states that:

“What then is the direct cause of Mr. Lindh’s loss of vision in the left eye? The direct cause cannot be said to be the pre-existing vasospastic- migraine body type. That condition was present for many years and caused nothing more than intermittent, non-disabling headaches. It did not “directly cause” the loss of vision: The loss of vision was directly caused by repeated blows to the head at work.”

What makes this case potentially so important is the fact that the concept of “cause” (or as Brodie says, “causative sources”) is poorly defined under the law. The concept of causation has been debated by philosophers and scientists for centuries. One can argue that with any event there may be multiple underlying background facts and circumstances at play, so in a sense one could argue that everything has a concurrent or contributing cause.

It may not be the best example, but consider this. If a child at my dinner table knocks over a glass of milk with his arm and spills milk on my rug, discoloring it, can the “cause” of the rug discoloration also be factors such as placement of the glass on the table, the height of the glass, the lighting in the room, the placement of chairs next to the table, the fact that the rug is absorbent rather than deflective, inattentive parent supervision and so many other “factors”? Maybe, but in common parlance we would say the cause is that the child carelessly knocked the glass of milk over, discoloring the carpet. In common parlance we might say that those other factors increased the risk of a spill but did not cause it.

In our workers’ comp system, as noted above, Labor Code 4664 adds the term “direct cause” into the mix. However, 4664 does not necessarily limit apportionment of disability to factors which are directly causative and also permits an approximate determination of other “causes”.

In Lindh the fundamental question seems to be whether the underlying abnormality was only a risk factor or whether it rose to the level of a causative source.

We shall soon see whether Lindh is decided in a way that has limited application to the peculiar facts of the case or whether it sets up broad rules for determining disability for asymptomatic but vulnerable individuals.

This is the WCAB panel decision in Lindh:

Lindh v. City of Petaluma

Here is the CWCI brief:


The brief filed by CAAA is here:


Stay tuned.

Julius Young