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The California Applicants' Attorneys Association has launched another legal attack on SB 899, this time charging that the reform bill's apportionment provision discriminates against pregnant women and older workers. CAAA filed the suit in the Second District Court of Appeal in Ventura on behalf of injured worker Marlene Escobedo. The lawsuit charges that the reform measure is a "cruel hoax being played on our elderly workforce," reducing compensation on the basis of age, gender and...

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Comments (17):

“So now it is the "age card," or 3 strikes you are out? Lets face it (in my opinion) the attorney's are not worried about how much compensation their client is going to receive but how much less they are going to receive. In the case of Escobedo, if the applicant received 15% before SB 899 his fee would have been $7053, after SB 899 his fee is $2620.50. You do the math!”
By: Anonymous, 06/08/2005 02:50:18 pm

“yes, do the math - what side earns more money applicant attorneys or defense attorneys on any particular case. Just wished the CAAA would have filed under Title VII as class action with injured workers - because there is age and disability discrimination. I guess that is why the Private Attorneys General Statute was gutted - so that some employers can have the protection of WC on "post termination" claims since some employers fail to report injuries as required and or have the WC Posters posted also required. Just my 3 cents worth today- yours truly. ”
By: Gary Tobia, 06/08/2005 03:17:48 pm

“I guess by this theory all of us should file a claim as we get old. A very wise QME once told me "As we age many people tend to blame their employer for the problems that god created in our natural aging process" I guess we can do this but we will all have to pay for it.”
By: Reynold Roth, 06/08/2005 03:50:12 pm

“I like your comments John, sounds like a very wise QME indeed. I agree and believe people have been filing claims for age related disability for years and employers have been paying for it. However, by the time you and I reach that era, that provision will(is) no longer available. (Better build your 401k cause w/c ain't going to be your meal ticket). :-)”
By: Karen, 06/08/2005 03:59:35 pm

“Just because there is age does not mean there is disability. Did you actually read the article? Apportionment to disability has always been allowed. Apportionment to don-disabling pathology was not allowed until SB899. As to the person who posted the comment that "we all should file claims as we get older" - did YOU read the article? Under SB899 your age related non-disabling pathology would be used to REDUCE not support your award. Finally as to the quote in the article from the insurance company lobbyist claiming that SB899 was "carefully hashed out" - what a crock! The bill was pushed through in the dark of night in less than a couple of day's time. SB899 is mean spirited and unfair and that's all there is to it. The insurance industrys deregulation, competitive underbidding and playing in the stock market caused the crisis in the comp system Prior to SB899. When the bottom dropped out of the market the carriers covered their stock market losses by doubling and tripling employer's premiums and then dishonestly blamed increased premiums on injured workers. As to those of you who continually ream applicant's attorneys - let me tell you, I am an applicant attorney. I work night and day for my clients and I don't get rich from it. When a carrier denies medical care I have to fight for it at the WCAB. I don't get paid for that work - not a cent. The defense attorney who appears on the same case gets paid. The insurance adjuster who denies the care gets paid. The UR doc who opines that care should be denied gets paid. The WCAB judge gets paid. The injured worker client gets the disputed medical care if I win the issue (and I frequently do, because the denials are frequently bogus). So, everyone gets paid EXCEPT the applicants attorney. The average attorney time for preparing and litigating a medical care issue is from 8 to 10 hours. 8 to 10 hours of work I do for FREE. I'm sick and tired of the uniformed hateful comments I see here leveled against those of us who represent injured workers. When one of you starts working for free then you may have the right to criticize those of us who do this work. Until then, keep your mean spirited comments to yourself. Most sincerely, G. Davis ”
By: G. Davis, 06/08/2005 06:52:24 pm

“You are right, a Defense Attorney pulls in a heck of alot more than an Applicant attorney with considerably less work. The real loser here is the injured employee. My husband was a Chef for 30 years after repetitive injury he was forced to give up the career he loves. He cannot enjoy his hobbies of bowling or fishing, he cannot even drive his beloved stick shift Corvette and longer. No amount of surgey has helped. The new law gave him a $15,000.00 award for the disability and he is only 60...he has five years to go until he can collect Social Security and the best job he can get now is as a Security Guard since he can barely use his hands. Tell me, is that fair? To hell with what an attorney makes...think abou tthe worker who has lost out on a $60,000.00 a year job, future retirement benefits and the potential loss of his home due to the dramatic decrease in salary to $24,000.00 a year. Come on now...who really is the loser here????”
By: Aly Gonzales, 06/08/2005 11:17:53 pm

“Gary: Once again I will say...What a wacko. You are the ultimate conspiracy theorist. I bet you have all of the X-Files episodes on DVD.”
By: Mario Yep, 06/08/2005 04:14:48 pm

“Sandi--I did the math. I have been doing it since the insurance companies gave Swartznegger more money than I will make in a lifetime, and all of a sudden he is on their side. I am a injured worker. From day one, the employer and the insurance company has played hardball.They have lied, delayed, denied, since the day I was hurt.Even the company manager I used to work for got caught in a lie in front of the Judge, turned red, stammered, and tried to come up with an excuse when he was caught in a lie. My attorney has gone to court numerous times, and now we have to go back to court again, because the IC has delayed and denied. There are over 15 penalties pending, nUCLA has been denied twice for me to get a nerve conduction, IC denies, saying not much, then UR says no based on I have failed back, failed neck, and other problems. The mpain is so severe I take Dilauded, the higest dosage, which dying Cancer patients take. Now because of all the pain and stress, I developed high blood pressure, a heart condition, diabetes, and who knows what else due to IC delaying and denying. I used to Scuba dive, hike 10 to 15 miles a day, backpack, ski, plat tennis, and now I am reduced to being a shell of a man, with my early death staring me in the face.My attorney is trying to get the "cure and relieve"--which is also in the California Constitution--=for me. I am sure also that the attorneys for the insurance company do not work for free, and my guess is they get some kind of bonus if they can reduce the injured workers payment. Why is it I only see from people like you that all that is said is to focus on the CA applicant attorney, and say everything that is done is done for the attorney. I had to go to court, the IC would not approve anything unless I changed doctors. So I changed drs, the IC denied again, now we have to go back to court because what "your side" attorney agreed to one thing in court, then for three months so far they either ignore or delay, so now I am getting worse. I really feel I do not have much longer to live, I take my pain pills, try to push to just do the things like walking that people like you take for granted, and then I go back home and pass out on the couch due to the extreme pain. I had a frien of mine commit suicide by putting a gun to his head and pull the trigger, due to his IC delaying, and he could not take the pain anymore. His wife and I have suffered so much. We need help, and the IC 's are pulling out all the stops to make sure us injured workers get as little help as they are willing to give. It is immoral.”
By: Donald Kottler, 06/17/2005 07:11:42 pm

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“In discussing the Escobedo case, the author describes a reduction in disability payments for naturally occurring age related disability, i.e., arthritis. Why would one think someone should pay for something they didn't cause? I would prefer to see an organization present objective evidence giving credence to both sides of the equation. Let's hear the pros and cons of apportionment, not anecdotal evidence. ”
By: Karen Sickels, 06/08/2005 03:55:11 pm

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“Is it then safe to say that California Employer's were discriminated against based on the age of their work-force in paying more for permanent disability for workers over 39 (the cut off where the standard PD was not affected by age)? Does this mean that California Employers were discriminated against based on paying for prior pathology? When a pregnant woman is injured on the job, it is typically low back and this is a common condition of the pregnancy. There is not a doctor in their right mind that will x-ray a pregnant woman so how could the employer prove or disprove the injury. The employer was held hostage until after the worker delivered her baby. Even then, no doctor would x-ray a nursing mother. TTD was paid throughout this entire time. Was that Fair? ”
By: Sean Nitzen, 06/08/2005 03:57:30 pm

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“The applicant attorneys quoted in this article make statements to support their position that really do the opposite. Why should employers have to pay for degenerative pathologies? There are other social programs that pay for disabilities of this nature. The Work Comp system was not intended to be a social welfare program, it was designed to provide benefits for injuries that were related to work, not he natural aging process. This is not discriminatory, it is a science based assessment of what portion of a given condition was the direct result of work. Again, let's not lose sight of the fact that the PD level is the main source of an applicant attorney's pay day. Who are they really trying to benefit? Wake up and smell the coffee.”
By: Mario Yep, 06/08/2005 04:12:42 pm

“It is not "science based." Where is the scientific evidence that Escobedo, in the absence of the work injury, could not have continued working? Where is the science-based evidence that 25% or 50% of someone's labor disabling back condition is due to age or obesity? And why is it that everytime any attorney tries to help an injured worker, you label them as self serving? I do not consider you an altruist. Nor are the insurance carriers and self-insured employers. Are you saying only those folks care about injured workers? ”
By: Marjory Harris, 06/08/2005 04:30:37 pm

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“It's really and odds ratio issue ie. likelyhood of a person in the general population having disability given a certain pathology. With degenerative pathologies the ratio is not 100% in other words, maybe 50% of those with DJD have symptoms. Imaging false positives also come into play. Recent research has shown the divurgence between imaging positives and actual symptomatology. So how can anyone say what 50% you're in (symptomatic vs. asymptomatic)? It's purely speculation and what we call SWAG at best. The only real measure would be to note previous disability or impairment and IMHO should be how it's done. Absent that we are kidding ourselves. Also note the article states "previous injury" numerous times. So these are previously asymptomatic, non-disabled, patients without impairment who have an injury they weren't aaware of? Hmmmm... ”
By: David Paris, 06/08/2005 05:16:17 pm

“The realities are 899 is discriminatory. I had an AME with Dr. Sidney Levine. He apportioned, under 899, 25% of my client's back injury to her pregnancy. At the time of the accident my client was 7 months pregnant. She had one prior pregnancy without back pain. This pregnancy was without back pain. There is no record of back pain being mentioned prior to the injury. After the baby was born, my client's back pain remained the same, did not improve. So tell me, if 899 isn't discriminatory, what is it in a circumstance like this. ”
By: Leslie Shaw, 06/08/2005 07:03:30 pm

“What is your opinion on cumulative trauma? CT by definition is " previously asymptomatic, non-disabling, without impairment injury -- Hmmmm... ”
By: Ray Montgomery, 06/09/2005 03:18:51 pm

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“While I dont have a copy of the suit and I dont know exactly what they are alleging I will assume that their claim must be based on an equal protection argument. Clearly, the apportionment statute is age- and gender-neutral on its face. Therefore, they are going to have to argue that the statute disproportionately effects those in a protected class, i.e., aged 40-70, (pregnant) women, etc. and is, thus, discriminatory in its effect/application. The problem for them is that in order to have the apportionment statute declared unconstitutional for fostering discrimination they will have to show that the adverse effect/application of the statute was the intent of the Legislature. Theyll never be able to prove this b/c this just isnt the case. It is said that the 14the Amendment guarantees equal laws, not equal results. I predict this case/argument to be a judicial loser for CAAA.”
By: Pacific Comp 3, 06/09/2005 12:48:20 am

“So if a WOMAN is pregnant, and the IC says that the apportionment of injuryis 75% caused by the pregnancy, even tho that is not the case, are you saying that the IC can manipulate what is said by DEFENSE attorneys, and justify the results, in your own mind, even tho morally you know that using your own standards benifits the IC and the injured WOMAN gets the short end of the deal, through no fault of her own, she happened to get hurt at work. And do you think any injured worker, that is older, or a woman, likes being injured, putting up with all the pain and stress of an injury, meanwhile losing out of her or his forty to sixty thousand dollar job, losing pension benefits, the happiness of working, and now having to get stuck in a system that now pays hardly enough to barely pay the rent or mortgage. How does she cope with listening to your argument. Maybe you shoud get hurt, be denied by your IC(for their financial reasons), go on State Disability, then lose your house, taking pain pills, going to doctors, and when it is all over being able to apply for welfare and State assisted housing, all because of one injury which changed your whole life-and not for the good.”
By: Donald Kottler, 06/17/2005 07:32:30 pm

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