LINDH
CASE RULING UPHELD BY CALIFORNIA SUPREME COURT
In
Lindh v. City of Petaluma, the Court of Appeal allowed apportionment in a case where the severity of the eye injury (blindness) was in part caused by a pre-existing asymptomatic eye disease as substantiated by credible medical evidence. The California Supreme Court has now upheld the Court of Appeal's decision by declining to hear the appeals filed by the applicant and CAAA.
KITE
APPLIED TO PRE-2013 CASE
According to two AMEs in
County of
Alameda v. WCAB (Cortes)(2019) 84 CCC98, the applicant incurred a cumulative trauma injury from 2007 to June 2012 to the spine and upper extremities (49% wpi), and subsequently psych (42%) as a compensable consequence. The ortho AME stated there was no "overlap" of the physical and psych disabilities which should be "added" per
Kite as oppose to utilizing the CVC, and otherwise deemed the applicant 100% due to being unable to work in the open labor market.
The WCAB found the AME reporting constituted substantial evidence to add the PD together, and that the applicant was otherwise 100% per the reporting of the AMEs and applicant's vocational rehabilitation report. The defense filed an appeal but their writ was denied.
[COMMENT: First, have to question the alleged "lack of overlap" when one disability actually caused the other disability. Second, the results may have been different if the CT ended six months later in 2013 when SB 863 would have prevented any compensable psych PD.]
