How to "Discriminate" on the Basis of Age, Sex, Etc. or "Lies, Damned Lies, & Workers' Comp"

How to "Discriminate" on the Basis of Age, Sex, Etc. or "Lies, Damned Lies, & Workers' Comp"
by Donald R. Barthel, Esq.
Governor Schwarzenegger signed into law the workers' compensation reform package known as SB 899 on April 19, 2004. Unfortunately, SB 899 has generated a pack of lies.

What's the biggest whopper you've heard about SB 899? Recall some folks (including a certain San Francisco WCJ), arguing that the 2005 Permanent Disability Rating Schedule and AMA Guides didn't apply to ANY pre-1/1/05 dates of injury?1 That was a doozy! Or how about CAAA's2 insistence that a mere microscopic discectomy qualified as an "amputation" and, therefore, permitted applicants to avoid the two-year temporary disability cap?3 I had personally believed that one represented the most outrageous claim about SB 899 we would hear. Wow! Was I ever wrong!

The Biggest Lie: "Apportionment is discrimination! Apportionment is discrimination!"
At the latest CAAA convention4, Sen. Carole Migden, D-San Francisco, led nearly 2,000 applicant attorneys in this chant as a way of introducing her new bill (Senate Bill 1115). This proposed law states that "race, religious creed, color, national origin, age, gender, marital status, sex, or genetic predisposition shall not be considered to be a cause or other factor considered in any determination" of permanent disability.

There's only one little problem... It's all lies, and, apparently, a calculated maneuver to undercut huge defense advances on apportionment issues. 5

How You Can Prove Genlyte & Zenith Courts Wrong!

How You Can Prove Genlyte & Zenith Courts Wrong!
by Donald R. Barthel, Esq.
The Problem
Oh no! California has, yet again, another split decision!

Remember the confusion last year? After years of following the apportionment rules set down 30-plus years ago in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1 (Fuentes)1, the various Courts of Appeal interpreted the impact of SB 899 on this issue with different results. Some concluded we were to continue to apportion by subtracting percentages (Formula A). Others concluded that we were to apportion by subtracting money (Formula C). Faced with conflicting instructions from the courts above, the WCAB punted, refusing to issue apportionment decisions until the California Supreme Court weighed-in.2

It has happened again!