The California Court of Appeals in Sacramento has, in an unanimous decision, ruled that a disabled employee’s age cannot be used to reduce workers’ compensation benefits.
In January 2003, while working as a receptioninst for California Travel and Tourism Commission, 76-year-old Lois Vaira hurt her back when she bent over and tried to pickup travel brochures that had fallen off of a shelf. At the time, CTTC was insured for workers’ compensation by the California State Compensation Insurance Fund.
A medical examiner concluded that Vaira has suffered a compression fracture on her spinal column and had become permanent and stationary by February 2004. The doctor also concluded that the petitioner’s age and preexisting osteoporosis of the spinal column contributed to her disability. As such, he apportioned 40 percent of the disability to her preexisting condition, and 60 percent to the industrial injury. The parties stipulated to overall disability of 64 percent after adjustment for age and occupation, but before apportionment.
A workers’ compensation judge awarded Vaira’s benefits according to the 40 percent apportionment, and Vaira received $51,152 in permanent disability benefits.
Vaira filed a petition for reconsideration. She contended that WCAB erred in apportioning part of her disability to her age and osteoporosis and in reducing her overall percentage of permanent disability based on a prior award. (Five months prior to her injury, she had suffered another work-related injury and filed a separate workers’ comp claim.) She contended that any reduction in benefits due to her age and osteoporosis amounted to age and gender discrimination. AARP and the American Civil Liberties Union of Northern California supported her petition.
The court of appeals concluded that WCAB’s specific apportionment to age and osteoporosis was “not supported by substantial evidence.” “The WCAB may not reduce petitioner’s benefits simply because she is older than another similarly situated worker … We further conclude any apportionment to age, per se, runs afoul of state antidiscrimination law. … On the present record, we cannot determine if Dr. Johnson, and hence the WCAB, apportioned disability to age per se rather than to one or more physical or mental conditions associated with age that contribute to her disability,” the appeals court said.
Thus, the court annulled WCAB’s order and remanded the matter to take further evidence and for further proceedings.
Source: California Courts
Calif ExPat says: 
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