Supreme Court Rules Against Injured Workers on Apportionment Formula

The California Supreme Court has reversed two lower courts that favored injured employees when calculating Permanent Disability benefits. The 1st and 5th District Courts of Appeal, as reported in the last issue of this newsletter, ruled that only the money received for a prior injury should be deducted from any overall disability award.

Now, though, the state's top court has nullified that one favorable decision since Gov. Arnold Schwarzenegger's Workers' Compensation law was enacted in 2004. The court ruled that the percentage of an employee's earlier disability should be subtracted from the overall disability. This policy hurts the most seriously injured the most.

According to all seven justices, the Legislature's only intention when it passed SB 899 was to lower Workers' Comp costs for employers. Therefore they interpreted the law in a way that was least costly to employers, disregarding its effect on disabled workers.

At the center of the ruling was a claim by Kenneth Welcher, who received a Permanent Disability rating of 62.5% and $32,193 in benefits after injuring his right arm and leg in a 1990 conveyor belt accident. Welcher continued to work until 2001, when doctors amputated his leg below the knee after a new injury, raising his level of disability to 71%.

Welcher's attorney argued that he should receive about $68,000 in additional benefits, after deducting the prior $32,193 award from the monetary value of a 71% total disability. The Supreme Court ruling means he will only receive $3,360.

Put simply, a worker who is totally disabled due to two industrial injuries may receive far less than a coworker who was totally disabled by one injury. Why?

The head of the California Applicants' Attorney Association called the opinion a "severe blow" for permanently disabled workers. "The only relief injured workers are going to have is through the Legislature," said CAAA President Linda Atcherley.

Readers can join Voters Injured at Work through: www.viaw.org The law firm continues to fight the Schwarzenegger Law's tragic effects on injured workers case by case and issue by issue at the trial court and appellate level.