Melissa C. Brown on Discrimination Due to Apportionment to Age and Gender-Related Conditions: Vaira v. WCAB

This expert commentary by Melissa C. Brown analyzes the unpublished California Court of Appeal decision in Vaira v. Workers' Comp. App. Bd. (2007) 72 Cal. Comp. Cas. 1586, which held that any apportionment of a workers’ compensation award to age or gender, per se, is a violation of California’s anti-discrimination law as set forth in Cal. Gov. Code § 11135. Vaira is the first Court of Appeal decision that addresses the distinction between risk factors for causation of injury and causes of permanent disability.

 The Vaira Decision. On January 27, 2003, Lois Vaira injured her back while working as a receptionist for the California Travel and Tourism Commission.  She was 73 years old at the time of her injury. The Agreed Medical Examiner (AME) in the case apportioned 40 percent of Vaira's disability to preexisting osteopenia (low bone density), a condition from which she had no symptoms or treatment, and 60 percent to the industrial injury.  Because the AME, in his reports and deposition, sometimes expressed himself in terms of the preexisting conditions having caused 40 percent of the employee’s injury rather than 40 percent of her disability, the Court of Appeal returned the case to the Workers’ Compensation Appeals Board (WCAB) to take further evidence on the question.  Under California law, a preexisting condition that is a risk factor for an employee’s injury does not constitute “other factors” for purposes of  apportionment of permanent disability [see United Airlines v. Workers' Comp. App. Bd. (Milivojevich) (2007) 72 Cal. Comp. Cas. 1415 (writ denied)].

In a separate issue, Vaira contended that any reduction by the WCAB in her disability benefits based on her age and osteoporosis amounted to both age and gender discrimination. She contended that any such reduction was prohibited by Cal. Gov. Code § 11135, California ’s anti-discrimination statute. It provides that no person may, on the basis of various categories, two of which are age and gender, “be denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency” [Cal. Gov. Code § 11135(a)]. Accordingly, if the “other factors” causing permanent disability under Cal. Lab. Code § 4663 are the result of age, gender, race or other protected classes, apportionment to these conditions is prohibited unless the doctor and the trier of fact can parse out age, gender and race. Cal. Gov. Code § 11135 acts as a strict prohibition to State action that uses these factors to reduce benefits to injured workers. It is important to understand that with the Government Code challenge, it is not the insurance company that is held to the anti-discrimination law, but rather, the WCAB itself. Moreover, unlike other anti-discrimination statutes, there is no requirement that disparate impact be shown; rather, it is an absolute prohibition.

To read Brown's additional comments and practice points on this topic, see her expert commentary article.