Governor Schwarzenegger signed into law the workers’ compensation reform package known as SB 899 on April 19, 2004. Unfortunately, SB 899 has generated a pack of lies.
What’s the biggest whopper you’ve heard about SB 899? Recall some folks (including a certain San Francisco WCJ), arguing that the 2005 Permanent Disability Rating Schedule and AMA Guides didn’t apply to ANY pre-1/1/05 dates of injury? 1 That was a doozy! Or how about CAAA’s 2 insistence that a mere microscopic discectomy qualified as an “amputation” and, therefore, permitted applicants to avoid the two-year temporary disability cap? 3 I had personally believed that one represented the most outrageous claim about SB 899 we would hear. Wow! Was I ever wrong!
The Biggest Lie: “Apportionment is discrimination! Apportionment is discrimination!”
At the latest CAAA convention 4, Sen. Carole Migden, D-San Francisco, led nearly 2,000 applicant attorneys in this chant as a way of introducing her new bill (Senate Bill 1115). This proposed law states that “race, religious creed, color, national origin, age, gender, marital status, sex, or genetic predisposition shall not be considered to be a cause or other factor considered in any determination” of permanent disability.
There’s only one little problem. It’s all lies, and a calculated maneuver to undercut huge defense advances on apportionment issues. 5
Who says legal apportionment is not “discrimination”? How about the California Court of Appeals and the California Government Code? In the matter of Vaira 6, the Court made perfectly clear that permanent disability apportionment on the basis of “race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability” is already prohibited by Government Code 11135. 7 That said, the Court went to underscore how apportionment may—and may not—be calculated: “To the extent [the doctor] based his apportionment on…age, this would…[impermissibly] violate…11135. The WCAB may not reduce petitioners [PD] simply because she is older…” However, “[t]o the extent osteoporosis or some other…condition that might contribute to a work-related disability arises or becomes more acute with age, we see no problem with apportioning [PD] to that condition…in such cases, apportionment is not to age but to a disabling condition.”
The Court of Appeals insisted that “[r]educing permanent disability based on a pre-existing condition that is a contributing factor of disability is not discrimination. When the WCAB determines a pre-existing condition contributes to a given disability, and apportions accordingly, this is merely a recognition that a portion of the disability exists independent of the industrial injury.”
With the Court of Appeals making clear that Government Code 11135 outlaws attempts to apportion on an illegal, discriminatory basis, all the shouting about “discrimination” should stop, right?
The Press Buys the Lie
A San Diego Union-Tribune financial columnist, Dean Calbreath, recently wrote that apportionment is “one area where… discrimination appears to be perfectly allowable.” 8 Huh? What about Vaira? What about Government Code 11135?
Mr. Calbreath deals with the facts like an old political pro: he ignores them! Not once does he bother to note that the Government Code 11135 and Court of Appeals both directly undercut his thesis!
Following San Diego’s lead, the Sacramento Bee‘s Daniel Weintraub recently got into the act, siding with CAAA representatives who state that =”risk factors” such as age and gender should not be “sufficient to reduce a [permanent disability award].” 9 Of course, this too fails to acknowledge the obvious; the Government Code and Court of Appeals have already taken care of this!
Mr. Calbreath’s article also expresses outrage that defense attorneys are promoting “discrimination” by “telling clients how apportionment can be used to their advantage.” Huh? How is it “discrimination” to apply the Labor Code’s apportionment statutes in an even-handed and impartial manner? Claiming something is “discrimination” doesn’t make it so.
Mr. Calbreath went on to note that “[n]ext month…the National Business Institute—a nationwide group that sponsors continuing-education seminars for lawyers and other professionals—will host a talk in Sacramento on “How to ‘Discriminate’ (Apportion) on the Basis of Age, Sex, etc.” By way of this creative stretching of the truth, this San Diego Union-Tribune writer paid homage to Tom Stoppard, 10 who once said, “It is better to be quotable than to be honest.” The referenced “talk” is indeed scheduled to proceed; it was created (and entitled) by the author of this article, Don Barthel, as a tongue-in-cheek response to the “Apportionment is Discrimination” crowd. “Discrimination” on the basis of age, sex, etc., is illegal, of course, and I would not endorse or promote such actions. 11 But to accept the position expressed by CAAA, Senator Carole Migden and columnists such as Mr. Calbreath and Mr. Weintraub (that is, all apportionment is “discrimination”) is to suggest that any discussion of the proper application of California’s apportionment statutes involves, by definition, “discrimination.”12 It simply ain’t so!
Why All The Lies?
Prior to SB 899, defense attempts to obtain apportionment nearly always failed. Under the “old rules” of apportionment, if permanent disability resulted from the acceleration, aggravation, or “lighting up” of a pre-existing condition, no apportionment was granted. Apportionment could not be attributed to causation or pathology. 13
Consider, for example, the “old law” case of Martins v. WCAB. 14 Ms Martin, a waitress, developed foot problems at work as a result of standing and walking. Noting that she also engaged in these activities while away from work, the doctor apportioned between work and non-work weight-bearing. This apportionment was not permitted. Reason: under the “old rules” apportionment was not permitted to be premised on causation.
Things have changed with SB 899. Now we are permitted to apportion on the basis of, inter alia, causation, pathology, asymptomatic prior conditions, and even retroactive prophylactic work preclusions.15
Do these apportionment changes decrease permanent disability awards? Yes.
Are these apportionment changes “fair”? “Fair” is in the eye of the beholder. Pose the question to an employer and an applicant; expect two different answers.
Is apportionment “discrimination.” Absolutely not!
But if you swallow the wholly unsupported lies being espoused by CAAA, Senator Carole Migden, and assorted columnists, then you will believe that California needs another overhaul to our workers’ compensation system (and the lies will have worked).
Don Barthel is a Founding Partner of Bradford & Barthel, LLP and founder of B&B Rating Services.
1 See Judge David Hettick’s Aldi vs. Carr,McClellan, Thompson & Horn and Republic Indemnity Co. of America (SFO 0485703) which stood for the erroneous proposition that the 2005 Permanent Disability Rating Schedule implemented on January 1, 2005, only applied to injuries occurring on or after that date.
2 California Applicants Attorneys Association
3 For a thorough discussion of this issue, see “TD Caps & Exceptions: ‘A Riddle Wrapped in a Mystery Inside an Enigma’”, by Donald R. Barthel, B&B BLOG, Vol. 3, No. 4, 2007
4 Heard at the 2008 Winter California Applicant Attorney Convention, January 24-27, 2008, Westin Mission Hills, Rancho Mirage.
5 See, e.g., Escobedo v. Marshalls (En Banc) (4/19/05); Yeager Const. vs. WCAB (Gatten)(11/28/06) 4th App. Dist.; Anderson v. WCAB (4/19/07) 2nd App. Dist.
6 Vaira v. WCAB (12/3/07) 3rd App. Dist.
7 Government Code 11135(a) provides: “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.”
8 “Race, Age, Gender Bias Hits Workers Across State,” by Dean Calbreath, San Diego Union-Tribune
9 “Governor Should Allow a Fix to Workers’ Comp Bill,” by Daniel Weintraub, Sacramento Bee (2/14/08)
10 An English dramatist
11 It is interesting to note that Mr. Calbreath never contacted me to determine the content of my proposed lecture.
12 See California Labor Codes, Sections 4663 and 4664.
13 See, e.g., Franklin v. WCAB 43 CCC 310
14 60 CCC 115
15 See Escobedo v. Marshalls (En Banc) (4/19/05)
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