B&B Files with CA Supreme Court: 100 Percent PD Award Encourages Discrimination

March 21, 2011

Sacramento, CA – March 21, 2011 Bradford & Barthel’s Greg Fletcher, Esq., filed a Petition for Review with the California Supreme Court last week questioning whether the WCAB may make a 100 percent permanent disability award that ignores the AMA Guides and Almaraz/Guzman, and is based on a physician’s opinion that potential future employers would illegally discriminate against the injured worker were he to apply for hire.

In the City of Irvine v. WCAB (Hansen) a police officer suffered a disabling stroke, causing some paralysis, weakness and psychological problems. The PQME provided various impairments from the AMA Guides. Taken in combination with psych impairment outlined by a second QME, the DEU determined permanent disability rated to 98 percent. However, largely based on the PQME’s assertions that the officer would never work again, in part because no employer would hire him and, thus, he was permanently totally disabled, the WCJ awarded 100 percent PD. The judge also relied on a vocational rehabilitation expert’s testimony that the officer had lost the ability to compete in the labor market, despite that expert’s admission that she was not differentiating between the inability to compete in the open labor market from the loss of future earning capacity (DFEC), and her concession that she had performed no testing for, nor analysis of, loss of earning capacity.

Mr. Fletcher explained “this case involves the interplay between Labor Code §4660 and §4662. §4660 (a) and (b)(2) mandate that in determining ‘percentages’ of PD account ‘shall’ be taken of, among other things, the diminished earning capacity of the employee, and that the determination of diminished FEC use a numeric formula based on the RAND study. §4662((b)(1) provides that the nature of the injury ‘shall’ incorporate the AMA Guides percentages of disability. In this decision, these mandates have been wholly ignored.” Mr. Fletcher observed that, while Labor Code §4662 provides a list of conditions conclusively presumed to produce permanent total disability—such as total blindness or loss of use of one’s hands—the statute concludes with a curious sentence: “In all other cases, permanent total disability shall be determined in accordance with the fact.” This has been interpreted by various recent panel decisions to mean that permanent total disability might not need to be derived by the mandates of Labor Code §4660.

Don Barthel, the defense attorney who argued Guzman before the 6th District Court of Appeal, described the WCAB’s interpretation of §4662 as “the exception that swallows the rule.” Stated Barthel, “We had thought that, if an injured worker was unhappy with a PD award based on the AMA Guides and rating schedule, his options were to rebut the Guides by applying alternative chapters, tables or methods within the four corners of the Guides, or—per Ogilive—rebutting the DFEC. Now the WCAB tells us in that—if the applicant seeks 100 percent PD—he need not even bother with the Guides or DFEC. Apparently a doctor’s bare assertion of lack of employability is enough. This doesn’t sound like substantial evidence to me.”

The defense petition argues §4660 and §4662 must be interpreted in a consistent manner. For medical evidence, the AMA Guides must be used, consistent with Guzman; and for vocational (non-medical) evidence, the standard for 100 percent PD must be a complete loss of earning capacity.

“This case also undercuts state and federal anti-discrimination law,” noted Greg Fletcher. “The WCJ relied on the doctor’s assertion that no employer will hire Mr. Hansen. This anticipates unlawful discrimination on the part of prospective employers. As such, an award of 100 percent PD violates public policy. Rather than provide the required reasonable accommodations, employers and prospective employers will be freer to discriminate against severely disabled individuals, if they know that it is likely that 100 percent PD will be awarded in the WC system. And injured workers will more likely give up a job search in favor of WC benefits if they know such benefits are available based on anticipated discrimination.” Don Barthel interjected, “Mr Hansen himself testified he himself did not even look for work after his injury. No effort was made—none whatsoever—despite the PQME’s observation that applicant could do sedentary work. This decision rewards and encourages applicants to not look for work. Thus, it contravenes one of SB 899’s primary objectives: returning injured employees to work.”

For a copy of Bradford & Barthel’s Petition for Review, click here.

 

About Bradford & Barthel, LLP Founded in 1997 by Thomas Bradford and Donald Barthel, Bradford & Barthel, LLP is the industry leader in the aggressive defense of Workers’ Compensation, Subrogation, and Employment, and Labor matters. With hundreds of years of collective defense experience, B&B’s 80+ attorneys, across the network of 12 California offices, defend its clients in workers’ compensation matters at every Workers’ Compensation Appeals Board (WCAB) in California. This ensures that firm clients get the advantages of local counsel, no matter where the case is tried. Also appearing statewide on civil issues, Bradford & Barthel’s defense team includes extensive expertise in employment, labor law, and general civil litigation matters.