Hertz v. WCAB (Aguilar)
Friday, May 28, 2010 | 0
By Mark Remas
Remas Group
The issue raised is whether the workers' compensation insurance company should be liable for non-industrial factors that affect an injured worker’s ability to return to the labor market.
The Supreme Court dismissed this case, which means the District Court of Appeals decision stands. However, the Supreme Court did not certify this decision for publication.
Labor market statistics demonstrate that individuals with limited education and limited language capabilities, regardless of race, have a lower rate of employment in the national and regional labor market.
According to the Bureau of Labor Statistics for individuals over the age of 25 with less than a high school education (2009) only 50% of men and 53.6% of Hispanic or Latino individuals are employed. It follows that the employment numbers will decrease further for those who are unable to communicate in English.
The article also makes note of the “perfect man” argument. What would be that standard? It strikes me that, when considering the future earning capacity of an injured worker, data is compared to similarly situated workers or would have to be considered in relation to the normative population. It would be reasonable to determine what is the average range for the population and identify how an individual meshes with that range.
For instance:
Educational Attainment – 2009 for 18 years and over:
- 70,044,000 High School Diploma
- 44,241,000 Some college to an Associates degree
- 40,276,000 Bachelors degree
- 15,260,000 Masters degree
- Approximately 40,000,000 Less than high school diploma
- Men: 41.9
- Hispanic men: 38.3
Therefore, the court will need to rely on vocational expert testimony to parse out the influence the industrial injury has as compared to the pre-existing employment barriers associated with language, education, transportation, as well as legal status. These are real issues that affect a person’s employability and, in my opinion, are not factors that should be included in a rating of permanent disability.
Rather, if a person, such as Mr. Aguilar, is unable to work due to the combination of industrial (medical) limitations and non-industrial (socio-cultural) barriers, he could avail himself of other services, i.e. Social Security. The criteria to qualify for benefits under other systems differ from workers' compensation and would afford Mr. Aguilar the remedy to address his limited access to employment.
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Mark Remas is owner of The Remas Group, a vocational rehabilitation consulting firm in San Diego.
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