Rehab Case Law Update

Sunday, December 19, 2004 | 0

Case Law Update

Can the Legislature decide what laws were meant to say? The California Supreme Court says that the Legislature can make changes to laws but only the Courts can decide what the law previously meant. In Lesli Ann McClung vs. EDD (S121568, 11/04/04) , the Court took issue with the Legislature's statement in the AB 2222 changes to the Fair Employment and Housing Act that its action (in AB 2222) was "declaratory of existing law." A lower court applied a provision of the 2001 amendments in AB 2222 allowing an employee to sue a co-worker for allegedly discriminatory acts based on disability. The lower court made its determination based on the "declaratory of existing law" language in AB 2222. The Supreme Court held that the analysis was not that simple and that it was up to the Court to decide what the law "meant" and not to the Legislature to decide what a previous Legislature had intended when it modified a statute.

While this case applies to the Fair Employment & Housing Act, it has potential application to recent workers' compensation reforms and their potential for "retroactivity." Medical treatment and PD provisions of these reforms are being applied to cases with dates of injury pre-dating the reform provisions; to many, that constitutes "retroactivity." In light of the McClung case, it will be interesting to see how the Supreme Court deals with the workers' comp issues - and it will most certainly have to deal with these issues.

Training Programs

A two day workshop designed for VR counselors and RTW Specialists presented by Allan Leno and Paul Hagle will be presented on March 2 and 3, 2005 at the Doubletree Hotel in Sacramento. This workshop will address recent workers' compensation reforms and their impact on employers, FEHA and Return-to-Work requirements for employers, RTW strategies and procedures, and business opportunities and strategies for RTW specialists. A copy of the workshop agenda and a registration form are attached to this newsletter. Participants who register by January 5, 2005 are eligible for a 20% "early bird" discount on the program registration fee (see the attached registration form for details).

This workshop provides essential information for rehabilitation counselors and return-to- work specialists who will be working with employers to develop detailed job descriptions, return-to-work programs and permanent modified/alternative jobs for injured employees. Employers who are developing "in-house" return-to-work programs will also find the workshop useful.

Special Offer: Some attendees at the November 2003 workshop in San Francisco have inquired about an "update" to that program. The morning session on March 2, 2005 covers recent workers' compensation reforms and their impact on employers and employers' FEHA obligations. Participants from the 2003 workshop can attend the morning session for $195 ($220 with the lunch option). If you are interested in attending the half day session only, please use the attached registration form rather than the one you received in the mail. If you have questions, please contact Allan Leno at the address below.

Allan Leno
1560-1 Newbury RD #327
Newbury Park, CA 91320
Ph: (818) 370-8859
Fax: (805) 241-0590

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859, allanleno@leno-assoc.com.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.