Those unfortunate enough to get hurt on the job know big changes in workers’ compensation laws slammed injured workers in 2004. This attack included substantial alterations of the law of apportionment, with the intent to reduce the amount of money paid to injured workers for permanent disabilities. After two years of bad decisions from the Workers’ Compensation Appeals Board and the courts, two cases have come down in this area that finally give the working person a break, and may ultimately result in an improvement in the law.
Apportionment of permanent disability used to mean that if an injured worker had a disability at the time of an industrial injury, the employer was not responsible for the disability that existed at the time of injury. If a worker had a disability in the past, and subsequently completely recovered, then apportionment could be defeated, even if the prior disability resulted in an award at the WCAB. Apportionment would not fly in most cases where the prior problem was asymptomatic, non-disabling pathology, like degenerative disc disease. Of course, this drove employers and insurance companies nuts.
Along came Schwartzenegger and his insurance lobby sponsors with their 60-year wish list in 2004, all in the name of “comp reform”. Apportionment law changed, now providing that prior WCAB awards must be deducted from any new award, and allowing apportionment to causation of disability, even asymptomatic, non-disabling pathology, with the intent to cut permanent disability benefits.
The way the law was interpreted by the WCAB allowed deduction of the percentage of the prior award from the new award, thus resulting in the lowest possible benefits to workers. The argument was clear: cut the money payable to disabled workers. The WCAB disregarded the continuing mandate in the Labor Code to liberally interpret the law to favor injured workers.
However, the Court of Appeals in the cases Dykes and Nabors reversed the WCAB, and emphatically stated that the law must be interpreted in favor of injured workers. The Court held that the dollar value of the previously awarded disability should be deducted from the dollar value of the new overall disability. Because the monetary value of disability increases exponentially as the overall percentage increases, the Dykes/Nabors rule results in more money for injured workers. The Court did not see the difference between a prior disability resulting in a WCAB award, and a prior non-compensable disability, when they held that dollars should be deducted. The result should be the same: allow the injured worker to benefit from the exponentially progressive permanent disability rates, while relieving the employer from the burden of paying the dollar value of a previous award or non-compensable disability.
Dykes/Nabors is really the first good news for injured workers coming out of the mess created by the governor. The extension of Dykes/Nabors to prior non-compensable disabilities may even work a better result than under the old law. However, the employers are squealing like stuck pigs, and we may not have heard the last word. The ultimate answer may be at the ballot box in November when we have the chance to send the Austrian back to Hollywood
