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The statutes for determining the percentages of permanent disability, Labor Code §§4660 and 4660.1, both contain this language: " In determining the percentages...account shall be taken of the nature of...his or her age at the time of injury."   LC §4660.1 provides: "The administrative director may formulate a schedule of age and occupational modifiers and may amend the schedule for the determination of the age and occupational modifiers in accordance with this section."

Labor Code §4663 allowed apportionment to "other factors" which some examiners used to apportion to age. This violated FEHA, but case law has allowed apportionment to age-related conditions (see Vaira below). In other words, if the doctor says he is apportioning to age, that is not OK. If he says he is apportioning to age-related degeneration, that is OK.

Of interest is that the workers' compensation provisions in the Labor Code do recognize that age-based bias cannot be allowed (see, e.g., LC §4603.6(f)(4) and LC §4610.6.(h)(4). added by SB 863.

Reducing the amount of permanent disability by apportioning to age-related degeneration causes additional hardship: "[O]lder blue collar workers....face declining functional capacities at a time when there are fewer alternatives, less strenuous job openings, and their retirement prospects are likely worse than a generation ago." The Age Trap

See, too: Apportionment, Attacking Causation, and Causation.

Label Item Links Comments
Labor Code      
Cases In Vaira v. WCAB, the Court of Appeal opined that "Reducing permanent disability benefits based on a preexisting condition that is a contributing factor of disability is not discrimination....The WCAB may not reduce petitioner's benefits simply because she is older than another similarly situated worker.. ..To the extent osteoporosis or some other physical or mental condition that might contribute to a work-related disability arises or becomes more acute with age, we see no problem with apportioning disability to that condition. However, in such case, apportionment is not to age but to the disabling condition."
Vaira v. WCAB “apportionment is not to age but to the disabling condition”--a distinction without a difference
Practice Tips

We need to insist that the evaluators stop apportioning to age in the absence of clear evidence that the injured worker had disabling degeneration caused by activities or factors other than work. The docs are using  epidemiology unrelated to the individual injured worker. That is unscientific and discriminatory. We must insist on evidence-based opinions peculiar to our client, not epidemiological speculation. Read an inspiring Wikipedia article on Jack LaLanne. Especially note his feats as an old man. 

Articles The Age Trap by Peter Rousmaniere

Aging Workers, Limited English, Limited Skills by Jon Coppelman
The Age Trap

Aging Workers
Magazine Articles

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