Stephen L. Kline,
Esq.
steve@adjustingworld.com
One
of the seminal cases in California workers compensation is the 1983
opinion by the late Chief Justice Rose Bird, where she asked the question,
“[W]here
an injured worker is found to be less than totally disabled and the
Bureau of Rehabilitation (Bureau) subsequently finds the worker not
qualified for rehabilitation benefits, does that finding constitute
'good cause' to reopen the permanent disability proceeding?”
Her
answer to the question was yes. The effect from this ruling was
the utilization of vocational rehabilitation experts to opine that an
injured worker was not able to be rehabilitated vocationally and unable
to compete in the open labor market. Consequently, some injured workers
were found to be 100% disabled.
With
the enactment of SB 899 and its reform predecessor, many have argued
that LeBoeuf is dead, because vocational rehabilitation ended
on December 31, 2008. Thus, vocational rehabilitation, which had
been exclaimed as the hub of the workers compensation system, is now
extinct. In addition, there are the apportionment changes that
hold an employer responsible for the permanent disability directly caused
by the industrial incident.
On
December 16, 2008, the Sixth District Court of Appeals in San Jose may
not have buried LeBoeuf, but they certainly put it on life
support with its published decision, Hertz Corporation v WCAB (Aguilar).
Mr. Aguilar sustained specific and cumulative injuries to both knees,
shoulders, wrists, and to his right ankle while working for the Hertz
Corporation (Hertz). None of the medical reports rated higher
than approximately 60%. However, expert testimony was presented
which indicated that Mr. Aguilar was not able to compete in the open
labor market. Combined, he was totally disabled, i.e. classic
LeBoeuf.
The
WCJ ruled, and the WCAB affirmed, that “it is proper to apportion
disability
brought about by non-industrial causes. The normal variations in native
aptitude found among human beings are not the same as disability; that
is part of the meaning of LeBoeuf. An employer takes the employee
as he finds him. With all his perceived shortcomings, Mr. Aguilar was
able to compete in the open labor market before his injury. As a result
of his injury, that ability is gone.” Thus Mr. Aguilar was nonfeasible
for vocational rehabilitation and permanently totally disabled.
Hertz’
primary argument in its Writ of Review was that when an injured worker’s
inability to participate in rehabilitation is due, in part, to nonindustrial
causes, an employer should not be liable for permanent total disability
benefits. They argued that Mr. Aguilar was illiterate and uneducated
even in his native language and thus those factors contributed to the
diminishment of his future earning capacity impairment.
The
Court agreed and held that the “LeBoeuf finding of no
vocational feasibility was entirely due to the disability directly caused
by the employee’s industrial injury.” They continued,
“In addition, the rating must consider what approximate percentage
of Aguilar’s disability was the direct result of his industrial
injuries, and what approximate percentage was caused by other factors,
including any pre-existing conditions. (§ 4663, subd. (d).) Apportionment
of permanent disability is based on causation, and is not limited to
prior disabilities.”
The
clear statement by the Justices was that “no evidence in
the record to support the Board’s finding that Aguilar’s
industrial injuries directly caused him to be 100 percent permanently
disabled.” “LeBoeuf holds that, where an employee
is found non-feasible for rehabilitation due to disability directly
caused by an industrial injury or injuries, that fact must be taken
into account in the employee’s permanent disability rating. (LeBoeuf,
supra, 34 Cal.3d at p. 243.) However, LeBoeuf does
not hold that an employee’s permanent disability rating must reflect
a finding of non-feasibility where the non-feasibility finding is due
in part to pre-existing nonindustrial factors or conditions. Regardless,
our revised workers’ compensation system precludes such a holding.
An employer may only be found liable for permanent disability directly
caused by the injured employee’s industrial injury (§ 4664,
subd. (a)), and apportionment is now based on causation (§ 4663,
subd. (a)), so an employer may properly obtain apportionment of a permanent
disability to factors that are not disabilities. (Brodie, supra,
40 Cal.4th at pp. 1325-1327.)”
Apportionment
principles trump LeBoeuf principles. The result is a major
blow to the unfettered vocational rehabilitation expert. They
now must consider those nonindustrial factors which impede vocational
rehabilitation in determining whether there is a total permanent disability
for an injured worker. The Court has made the §4664(a)
enunciation that an employer is only responsible for consequences directly
caused by the work injury, a strong tool to be used at all levels of
litigation. This case follows the Supreme Court’s decision in
Brodie. Direct cause and direct result are now key concepts
for the future.
However,
this case did not cement LeBoeuf’s doom.
In a concurring opinion, agreeing with the result, but prescient about
the strength of the prevailing opinion, Justice McAdams wrote, “I
am concerned about the future of LeBoeuf in light of this opinion.”
With additional cases, 2009 may bring us an expansion of this Aguilar
/ Brodie principle of direct causation.
Wishing
you all a Happy New Year. May your fondest wishes come true.
Thanks for your attention.
---
Steve Kline
If you have any questions, please feel free to contact me at my new
email address slkesq@me.com.
Don't
miss Steve's Legal Update on February 27th at the SBICA Luncheon.
See
the upcoming events calendar for more information......
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hesitate to ask. Email it to: steve@adjustingworld.com
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