In this issue..
Allen v WCAB (Ellis)
Vol. XV No.
I
January 2009
COMPENSATION
NEWS
MONTHLY REPORT
Appellate Court finds apportionment for
preexisting pathology and did not find
age-based discrimination
This is a non
published Appellate
Court decision that
has major
implications.
T
his is a very significant
case for workers'
compensation
purposes. Even though this case
is not published it cites published
cases for principles that can be
effectively utilized.
The applicant had an
admitted specific and cumulative
trauma injury. The applicant was
seen by an agreed medical
examiner (AME). The AME
determined that 20 percent of the
applicant's disability was due to
her preexisting pathology.
At trial the workers'
compensation judge (WCJ)
indicated that 20 percent of the
applicant's disability was
nonindustrial. The applicant
presented a vocational
rehabilitation expert at trial to
indicate the applicant's loss of
future earning capacity was 100
per cent.
The applicant filed a
petition for reconsideration
and the Workers'
Compensation Appeals
Board (WCAB) agreed with
the WCJ.
The appellate court
indicated the apportionment
was not speculation. The
applicant claimed that the
apportionment violated age
based discrimination under
Government Code section
11135. The appellate court
indicated the apportionment
was not based on age.
In addition the applicant
tried to argue the applicant
was 100 percent based on
the LeBoef V. WCAB and
this was disallowed.
==================
Editor: Harvey Brown
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