A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
Articles emphasizing practical knowledge you
can't find in practice guides
Profiles of people who changed workers’
• Marjory Harris
|You might think from
reading the California Constitution that someone who had
to have a work injury would not be further punished because
they were fat, had genetic defects, or because they were
born as one sex or another.
You might also think that someone with multiple disabilities
would be considered more disabled than someone with only
one disability. That seems logical, doesn't it?
And maybe you think, too, that someone who had no previous
or subsequent injuries or disabilities, worked a long
time for the same employer, and ended up with a disability
as a result of an accident and the continuous micro-trauma
of working for that employer, might be entitled to the
same amount of permanent disability as someone who had
the same disability with the same employer involving either
an accident or a microtrauma but not both.
You thought wrong. While the Constitution promises “that
the administration of such legislation shall accomplish
substantial justice in all cases expeditiously, inexpensively,
and without incumbrance of any character,” the worker
must now engage in long, time-consuming efforts to secure
the paltry amount of permanent disability promised under
the “reforms” of SB 899. This must occur before
the worker can benefit from the voucher system that purports
to substitute for vocational rehabilitation. Almost no
one uses the vouchers, because there is no provision for
payment of living expenses while retraining, and by the
time one is entitled to receive the voucher, the injured
worker has probably moved away from California or any
of the towns or cities within California that have retraining
programs, because he or she cannot afford to stay. Or
perhaps the injured worker has taken a job as a security
guard or such to fend off homelessness.
There are several methods for carving up permanent disability.
The first involves attributing part of the cause of the
permanent disability to "other
factors” that in and of themselves caused no
ostensible disability either previous or subsequent to
the work injury (LC 4663). The second involves reducing
the overall disability because of a previous work injury,
whether or not there was any disability at the time of
the subsequent work injury, and whether or not the later
basis for the disability was an impairment such as a diagnosis-related
estimate, which was not present before the work injury
(LC 4664). The third method is to take concurrent
injuries which caused no previous or subsequent disability,
and to make them into two separate injuries, which come
out to a smaller amount of money without changing the
overall percentage of permanent disability (Benson).
Const, Art XIV § 4 (2005).
The Legislature is hereby expressly vested with plenary
power, unlimited by any provision of this Constitution,
to create, and enforce a complete system of workers'
compensation, by appropriate legislation, and in that
behalf to create and enforce a liability on the part
of any or all persons to compensate any or all of their
workers for injury or disability, … irrespective
of the fault of any party. A complete system of workers'
compensation includes adequate provisions for the comfort,
health and safety and general welfare of any and all
workers… irrespective of the fault of any party;
authority and jurisdiction in an administrative body
with all the requisite governmental functions to determine
any dispute or matter arising under such legislation,
to the end that the administration of such legislation
shall accomplish substantial justice in all cases expeditiously,
inexpensively, and without incumbrance of any character…
Welcome to the world of apportionment, where angels
dance on the heads of pins, women
drown while proving they are not witches, and Alice,
representing the injured worker, confronts the Red
Queen and her bizarre reasoning.
to Causation of
In the “other factors” situation, a recent
case illustrates the pitfalls of this approach. The Agreed
Medical Evaluator originally found no basis to apportion
to non-industrial causes of the permanent disability:
“In terms of apportionment, she is certainly overweight
and deconditioned and some of her degenerative bony changes
may well be genetic and related to her lifestyle. On the
other hand, I cannot say that she would have a disability
today absent the work accident and exposure and cannot
say with any medical probability what her disability would
be today absent her job.”
When asked by the adjuster to review his opinion on apportionment
in light of the treater’s report, which the AME
previously discounted, the AME opined, “If we put
aside the fact that the work injury caused a lighting
up, the reality is that the injury by itself does not
explain her current disability. Had she been a younger
woman and had the same injury, there might well have been
no disability. The corollary is also true that absent
the work injury, there is no way to ascertain that she
would have a disability today….If we are looking
at the cause of her disability, I would concur with Dr.
[PTP] that 50% is a direct cause of the work injury and
50% is related to underlying genetic and non-industrial
I then wrote to the AME asking him to explain the contradictions
in his reports. He issued a third report repeating both
contradictory opinions, essentially leaving it to the
judge to decide.
At the Mandatory Settlement Conference, the defendant
would only offer 50% of the rating. The injured worker
sat nearby, a ponderous African-American woman in her
60s who had spent her career steering a bus through city
traffic. Most likely when she returned home she sat in
a chair and watched TV and ate the American diet. I decided
to take my chances with the judge and the substantial
evidence rule. Shortly before the trial I received word
that the defendant had decided to pay the full amount
of permanent disability, without apportionment to these
Where do medicine and science end and racial prejudice
and other biases begin? In my experience, many physicians
look down on the overweight patients that fill their
offices. While there may be a scientific basis for concluding
that some conditions are the result of obesity, that
does not stop these doctors from apportioning to obesity
where there is no scientific basis. Or apportioning
to age (or avoiding the mention of “age” and
referring instead to “degenerative changes” which
are caused by age).
in relevant part
(a) Apportionment of
permanent disability shall
be based on causation.
(b) Any physician who prepares a report addressing the
issue of permanent disability due to a claimed industrial
injury shall in that report address the issue of causation
of the permanent disability.
(c) In order for a physician's
report to be considered
complete on the issue of
permanent disability, it must
include an apportionment
determination. A physician shall make an apportionment
determination by finding what
approximate percentage of
the permanent disability was
caused by the direct result
of injury arising out of and occurring in the course of
employment and what approximate percentage of
the permanent disability was caused by other factors both
before and subsequent to the industrial injury, including
prior industrial injuries.
For the entire statute,
|Earlier this year, Carole Migden,
Chair of the Senate Committee on Labor and Industrial
Relations, introduced SB 1115 “To bar the consideration
of race, national origin, gender, sex, genetic predisposition,
and certain other factors in the determination of an apportionment
of the causes of an industrial disability.” In view
of existing law banning such discrimination in employment,
this would seem to be a “no brainer.” But
the Chamber of Commerce wailed the familiar “job
killer” cry. The “reforms” would disintegrate
if we let SB 1115 interfere with apportioning to “other
factors” in the nebulous Section 4663 of SB 899.
In the meantime, the "other factors" of LC 4663
have siphoned off permanent disability dollars and given
them to defense attorneys so they can reduce what gets
paid to the injured worker. The injured worker is no less
disabled, simply paid far less. Given the progressive
table for calculating permanent disability, even a small
reduction can result in a big decrease. The doctors and
defense attorneys are invested in the process, as the
“need” to take depositions and write supplemental
reports benefits them financially.
went to press before
the Assembly Insurance
Committee hearing date on
here for the status.
No person in the State of California shall, on the basis
of race, national origin, ethnic group identification,
religion, age, sex, color, or disability, be unlawfully
denied full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any program
or activity that is conducted, operated, or administered
by the state or by any state agency, is funded directly
by the state, or receives any financial assistance from
Prior Award With Overlapping Disability
The next way to carve up permanent
disability is to deduct for a previous work injury, whether
or not that injury was still causing disability at the
time of the later injury, and whether or not that disability
bore any resemblance to the current one. The defendant
has the burden of proving overlap [see Kopping
v. WCAB, 142 CA4th 1099 (2006)], but how
disability under the old Permanent Disability Rating Schedule
overlaps with impairment under the AMA Guides remains,
four years after SB 899, still undecided.
in relevant part
(a) The employer shall only be liable for the percentage
of permanent disability directly caused by the injury
arising out of and occurring in the course of employment.
(b) If the applicant has received a prior award of permanent
disability, it shall be conclusively presumed that the
prior permanent disability exists at the time of any subsequent
(c) (1) As used in this section, the regions of the body
are the following:
(C) Mental and behavioral disorders.
(D) The spine.
(E) The upper extremities, including the shoulders.
(F) The lower extremities, including the hip joints.
(G) The head, face, cardiovascular system, respiratory
system, and all other systems or regions of the body not
listed in subparagraphs (A) to (F), inclusive.
For the entire statute,
CT and Specific Injuries
The third way to carve up permanent
disability is to take a work injury where there was no
previous or subsequent disability, and no apportionment
to non-industrial “other factors,” and to
find that some of the PD is due to the specific event
and the remainder due to cumulative trauma while working
for the same employer. This is the situation in the Benson
case which has been appealed to the first District Court
Diane Benson injured her neck and filed a claim for
a specific injury. The AME found no non-industrial
apportionment but attributed the permanent
disability half to the specific injury and half to a
cumulative trauma ending on the date of the
specific injury. The WCAB found that there were two
separate injuries which had to be rated separately
rather than be combined. The result, given the
progressive money chart, was that Benson got
a lot less PD money than if she had had just the
Defense attorneys have rushed forward to “Bensonize”
their cases. What is saved on paying
the injured worker can now be spent on depositions.
Carving up PD is carving up the workers’ compensation
bar, which many of us believe is the real reason behind
the “reformed” LC 4660, 4663
& 4664 and the 2005 PDRS & proposed new PDRS produced
by the ADs, then and now. If the lawyers go, who will
cry out against the injustices done injured workers, and
against the obscene profit-taking of the insurers?
But some will stay, and in the next issue we will update
the law on apportionment and provide
some suggestions on how to attack attempts to
carve up PD.
v. The Permanente Med’l Group et. al. (12-13-07)
72 C.C.C. 1260.
In an en banc decision, the Workers’ Compensation
Appeals Board abrogated the Supreme Court’s 1977
decision in Wilkinson v. WCAB, (1977) 19 Cal. 3d 491,
42 C.C.C. 406.