We have frequently blogged the implications of an aging workforce. We are very interested in seeing how the workers comp system will handle older workers - people beyond the normal retirement age - when they are injured. Well, here is an interesting case from California.
Lois Vaira was a receptionist for the California Travel and Tourism Commission. In January of 2003 she was 73 years old. She bent over to pick up some travel brochures that fell off a shelf and injured her back. She suffered a compound fracture at T12 on her spinal column and was totally disabled from work. The medical examiner concluded that Vaira's age and preexisting osteoporosis contributed to her disability. He apportioned 40 percent of the disability to the preexisting conditions and 60 percent to the industrial injury. Vaira was awarded $51,152 in permanent disability benefits.
There have been three appeals, along with three reconsiderations. Vaira contends that the comp board erred in apportioning part of her disability to her age and her osteoporosis, thereby reducing the amount of the final award.
Permanent Disability and Apportionment
First, the appeals court defines permanent disability: "...the irreversible residual of an injury." The court goes on to state that "a permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market." In other words, permanent disability payments compensate workers for two distinct losses: the physical loss and the loss of earning capacity.
The long-overdue comp reforms contained in CA Senate Bill No. 899 (2003) redefined apportionment as follows:
A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage...was caused by other factors both before and subsequent to the industrial injury.
Let's paraphrase this: the new approach to apportionment is to look at the current disability and parcel out its causative sources - nonindustrial, prior industrial, current industrial - and isolate the amount directly caused by the current disabling injury.
Vaira claimed that age and osteoporosis were unrelated to the disability caused by her work-related injury. The fact that age and osteoporosis made her more susceptible to a spinal injury is irrelavent. Employers must accept people "as they are." Apportionment is appropriate only if these conditions contributed directly to the disabling injury - which Vaira says they did not.
Here is what the medical examiner had to say:
It was my opinion that, you know, her age predisposed her to the injury, the presence of osteoporosis, and possibly other factors of which, you know, in the physical examination may have shown up.
The court zooms in on this statement. To the extent that the examiner based his apportionment of 40 percent of disability on Vaira's age, he violated the statute prohibiting age discrimination. You cannot reduce benefits simply because Vaira is older (a lot older) than other workers doing similar work.
Back to Square One
Ultimately, the appeals court could not determine how much of the apportionment was based upon age. If osteoporosis becomes more acute with age (it surely does), and if this deteriorating condition contributes directly to the disability, then some degree of apportionment is appropriate. But the medical examiner failed to explain how he came up with his numbers. As a result, the appeals court remands the case back to the comp bureau for further consideration.
I can only wonder how the medical examiner is going to tackle his new task. How do you assign a specific percentage to such open-ended factors as age and preexisting conditions? Doctors are expected to come up with a precise number, but they are only making educated guesses. Their medical training does not prepare them for this work. This is not about healing, it's about indemnity benefits.
Ironically, as American workers continue in the workforce well beyond the age of 65, this type of assessment is going to become increasingly important. Lois Vaira does not think of herself as a pioneer and pace-setter for the comp system, but she is. Her struggle to secure benefits for her retirement will be re-enacted in courtrooms across the country.