Apportionment attack will dismantle reforms -- opinion.
Friday, October 12, 2007 | 0
by David DePaolo
In earlier opinion pieces I have argued that the California reform movement was ill-conceived, not well thought out, terribly drafted, and worse, would provoke a swing of the pendulum to an opposite direction in a much more violent manner. We are about to see the beginning of the reversal process, and this will shock the California workers' compensation system in a very significant way.
Now before the Third Appellate District of the California Court of Appeals, Vaira v. WCAB, C054948 is the first challenge to SB 899 apportionment that actually makes intellectual sense, and if the court follows the law to the extreme of logic, will end up essentially rendering apportionment moot.
Government Code section 11355 provides in pertinent part:
(a) No person in the State of California shall, on the basis
of race, national origin, ethnic group identification, religion,
age, sex, sexual orientation, 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 the state.
Now, let's dissect this a little bit.
"No person...shall, on the basis of race,... sex,... color, or disability,... be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state...".
The key word, in my opinion, in the first paragraph of GC 11355 is unlawfully. Certainly the argument is that apportionment under SB-899 is not unlawful, and thus can not become the subject of GC 11355.
But it is not apportionment per se that is unlawful, it is the manner in which apportionment is applied that is unlawful.
"No person...shall, on the basis of race,... sex,... color, or disability,... be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state...".
The key word, in my opinion, in the first paragraph of GC 11355 is unlawfully. Certainly the argument is that apportionment under SB-899 is not unlawful, and thus can not become the subject of GC 11355.
But it is not apportionment per se that is unlawful, it is the manner in which apportionment is applied that is unlawful.
Labor Code 4663 states that apportionment shall be based on causation. I have argued before, and the courts apparently have disagreed (or more likely the weight of substantial evidence in the test cases didn't support) that this is a direct cause and effect relationship. In other words, where an injured worker was able to perform the essential functions of the job prior to the injury even with osteoporosis, such as in the Vaira case, but after the disabling injury has a disability that may exceed what the disability would have been had the injured worker not had osteoporosis, there should be no apportionment. The osteoporosis did not cause the disability. There was no disability until the industrial injury. Thus, the direct cause of the disability was the industrial injury.
The courts have not seen it that way, so far. They have rejected the pre-SB 899 notion that the employer takes the employee as he is, with or without prior disabilities. The courts thus far have determined that those with an underlying, perhaps even asymptomatic, disability, will not be compensated fully for the whole disability even if the employee was able to perform all of the functions of the job prior to the injury without limitation. The era of the "labor disabling" event has ended.
Or has it?
Let's go back to GC 11355's requirement of unlawfulness. GC 11355 is a much more broad legislative pronouncement than SB 899's declaration of apportionment based on causation, because regardless such apportionment must be lawful.
And that is where the Americans with Disabilities Act comes in.
The ADA prohibits discrimination in all employment practices, including compensation. On the job injuries are dealt with by a system of workers' compensation. The long standing history of workers' compensation makes it clear that the various indemnity benefits are compensation meant to provide some financial relief as a consequence of an industrial injury.
The ADA question and answer page published by the US Department of Justice makes it clear that an employer can not discriminate against a "qualified individual" on the basis of disability. A "qualified individual" is one who can perform essential job functions except for limitations caused by a disability. The employer must make a "reasonable accommodation" for that person. A reasonable accommodation "includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."
In workers' compensation this is called compensation, and more particularly permanent disability indemnity without apportionment.
So, while LC 4663 apportionment is not unlawful per se, its application violates, by my rationale, the ADA, and thus is unlawful, which thus violates GC 11355.
In my opinion, apportionment before SB 899 also violated GC 11355, but no one cared because apportionment before SB 899 was virtually meaningless after years of judicial debridement. Now that injured workers have not only been legislatively castrated, but have had issues of normal living come back in cases to eviserate any remaining indemnity, they are fighting, and fighting hard.
And I, frankly, am glad to see it. SB 899 was enacted in haste, without proper discussion, and without the consequences properly vetted. Now it's time to deal with the consequences. Will we learn anything? I doubt it.
But don't say I didn't tell you so.
The courts have not seen it that way, so far. They have rejected the pre-SB 899 notion that the employer takes the employee as he is, with or without prior disabilities. The courts thus far have determined that those with an underlying, perhaps even asymptomatic, disability, will not be compensated fully for the whole disability even if the employee was able to perform all of the functions of the job prior to the injury without limitation. The era of the "labor disabling" event has ended.
Or has it?
Let's go back to GC 11355's requirement of unlawfulness. GC 11355 is a much more broad legislative pronouncement than SB 899's declaration of apportionment based on causation, because regardless such apportionment must be lawful.
And that is where the Americans with Disabilities Act comes in.
The ADA prohibits discrimination in all employment practices, including compensation. On the job injuries are dealt with by a system of workers' compensation. The long standing history of workers' compensation makes it clear that the various indemnity benefits are compensation meant to provide some financial relief as a consequence of an industrial injury.
The ADA question and answer page published by the US Department of Justice makes it clear that an employer can not discriminate against a "qualified individual" on the basis of disability. A "qualified individual" is one who can perform essential job functions except for limitations caused by a disability. The employer must make a "reasonable accommodation" for that person. A reasonable accommodation "includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."
In workers' compensation this is called compensation, and more particularly permanent disability indemnity without apportionment.
So, while LC 4663 apportionment is not unlawful per se, its application violates, by my rationale, the ADA, and thus is unlawful, which thus violates GC 11355.
In my opinion, apportionment before SB 899 also violated GC 11355, but no one cared because apportionment before SB 899 was virtually meaningless after years of judicial debridement. Now that injured workers have not only been legislatively castrated, but have had issues of normal living come back in cases to eviserate any remaining indemnity, they are fighting, and fighting hard.
And I, frankly, am glad to see it. SB 899 was enacted in haste, without proper discussion, and without the consequences properly vetted. Now it's time to deal with the consequences. Will we learn anything? I doubt it.
But don't say I didn't tell you so.
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David J. DePaolo is the president and CEO of WorkCompCentral. The opinion expressed in this column are those of the author only, and do not represent the opinions of WorkCompCentral, its editors or its management.
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