Apportionment Allowed For Portion of Claimants Disability Associated with Illiteracy and Language Difficulties

Apportionment Allowed For Portion of California Claimant’s Disability Associated with Illiteracy and Language Difficulties. Here’s what happened A California worker sustained specific and cumulative injuries to his knees, shoulders, wrists, and right ankle while working as an auto washer for a rental car company. Due to the worker’s injuries and his inability to read and write English, the workers’ compensation judge found him to be non-feasible for vocational rehabilitation and, accordingly, awarded permanent total benefits. Most jurisdictions follow the “full responsibility rule” whereby an employer takes the employee as it finds him/her and is, therefore, responsible for the entire disability outlay. California, however, allows apportionment of a worker’s claim under some, specific circumstances. Its statute generally provides that the employer is liable for only the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. The rental car company accordingly contended that the worker’s limited language skills (he was virtually illiterate even in his native Spanish) and his overall lack of aptitude was a pre-existing, non-industrial factor that would support apportioning the worker’s permanent disability benefits. Can/should such illiteracy be deemed a non-industrial “disability”? How how the court decided. In Hertz Corp. v. Workers’ Comp. Appeals Bd. & Manuel Aguilar, 2008 Cal. App. LEXIS 2422 (December 16, 2008), review granted, depublished March 25, 2009, the Court of Appeal of California (6th Appellate District) determined that in as much as the Board’s finding of 100 percent permanent disability was based, in part, on the finding of vocational non-feasibility, that is, a finding of the worker’s permanent inability to compete in an open labor market, and since that finding was based, in part, on pre-existing, nonindustrial factors, it was error to direct the employer to provide 100 percent permanent disability benefits; the rental car company should not be liable for the portion of the workers’ disability that had been caused by the pre-existing nonindustrial factors. The court of appeal, therefore, remanded the matter for a redetermination of Aguilar’s permanent disability rating keyed to industrial factors. Note, however, that the Court of Appeal has apparently had second thoughts. On March 25, 2009, review was granted, and the decision was depublished. We will need to await an additional ruling by the court. See generally Larson’s Workers’ Compensation Law § 90.03, 90.04. Case: http://www.lexis.com/xlink?owcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=2008%20Cal.%20App.%20LEXIS%202422%20&view=full Larson 90.03: http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=5-90+Larson%27s+Workers%27+Compensation+Law+%A7+90.03&ORIGINATION_CODE=00248 Larson 90.04: http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=5-90+Larson%27s+Workers%27+Compensation+Law+%A7+90.04&ORIGINATION_CODE=00248 _____________________________________________________________________________________ Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Attorney Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: [email protected]. http://law.lexisnexis.com/practiceareas/Workers-Compensation _____________________________________________________________________________ WC Cost Calculator to show the REAL COST of workers www.ReduceYourWorkersComp.com/calculator.php Do not use this information without independent verification. All state laws are different. Consult with your corporate legal counsel before implementing any cost containment programs. ©2008 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact I[email protected]