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Workers = Comp and Apportionment: The Hits Keep Coming
By John P. Timmons, Esq.
Law Offices of Timmons, Owen & Owen, Inc.
Know this, those of you who work for a living: it=s all about money. They got it, and don=t want to give you any of it, even if you have been injured seriously on the job. The last article discussed this basic legal principle in the context of rating permanent impairment. This article will show how what little you get in permanent disability is whittled away by the new apportionment law.
Apportionment in workers= comp was defined for 50 years as the employer is responsible only for that portion of an employee=s disability caused by the industrial injury or exposure. If at the time of the industrial injury the employee was limited in activities, suffered pain, was under a doctor=s care, or was losing time from work due to a pre-existing problem, the employer was not responsible for the disability that existed at the time of the industrial injury. If an employee had a prior injury, even one resulting in surgery and resulted in a workers= comp award, but had recovered, was unrestricted on and off the job, was not getting medical treatment of any sort, and was fully rehabilitated at the time of the industrial injury, then the employer paid the entire permanent disability benefit amount, without deductions.
In 2004, the Chamber of Commerce, the insurance industry, and their stooge, the governor, got their 50 year old wish list written into law. One of the prime targets was apportionment, because if you apportion disability, you cut the money paid to injured workers. Labor Code sections 4663 and 4664 became the law. The law now states that apportionment of permanent disability shall be based on causation. The intent was to allow apportionment to everything under the sun: pathology, asymptomatic pre-existing conditions, old age, living on a gravity planet, anything that they can come up with. Recent case law interpreting these sections states that apportionment must be based on reasonable medical probability, but the concept that the employer takes the worker as he finds him appears to be ancient history.
Let=s see how the new law works. A firefighter injures his or her knee in high school, resulting in meniscus surgery. The firefighter gets treatment, rehabs the knee, recovers and returns to full activities, including vigorous sports. The firefighter is hired by the fire department, passes all physicals, and works for years as a firefighter, unrestricted on and off the job, asymptomatic, not losing time from work, then blows out the knee doing overhaul. The MRI the next day reveals the prior meniscus removal and degenerative changes in the joint. The firefighter was unaware of the degenerative changes until the post-injury MRI. The knee goes from bad to worse and a knee replacement is required. The firefighter reaches maximum medical improvement and is rated at 10% whole person impairment for a total knee under the AMA Guides (see last Beacon issue!). The evaluating physician then states that 25% to 50% of the disability was caused by the pre-existing, non-industrial, asymptomatic, non-disabling pathology (degenerative changes on the MRI). That whopping 10% now is reduced to 5% to 7%. Thank you very much, have a nice life.
Under the prior law, not only would the overall disability be higher, but also no apportionment would be allowed under this fact pattern. While the physician=s opinion may be disputed, and there may be other ways to skin the cat, if you can=t wriggle out of it, the result above will hold. The bottom line is less money to injured workers.
The politicians control what happens in workers= comp, and they listen to firefighters. However, just today the governor has stated that there will be no help for injured workers in correcting the 2004 changes until summer, even though the insurance commissioner has recommended a 50% reduction in insurance rates since 2004. The message is clear: the insurance industry needs to make and keep more money before anything goes back to injured workers. Firefighters, their families and friends need to make it clear to the politicians that worker benefits will not be sacrificed to fuel insurance industry profits. Slashing worker benefits needs to be corrected now.
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Workers= Comp and Apportionment: The Hits Keep Coming
