Rassp on Affirming Fuentes Rule for Permanent Disability Indemnity Calculation

 The California Supreme Court resolved in Brodie v. Workers' Comp. Appeals Bd., 40 Cal. 4th 1313, 72 Cal. Comp. Cas 565, 2007 Cal. LEXIS 4334 (May 3, 2007), the conflict among the state appellate courts as to the correct Formula to be applied for determining the apportionment of subsequent permanent disability ratings.

 This commentary, written by Robert G. Rassp, the author of The Lawyer's Guide to the AMA Guides and California Workers' Compensation, examines from the perspective of an applicant’s attorney the ramifications of the interpretation in Brodie of Cal. Labor Code § 4663 and Cal. Labor Code § 4664 and the continued application of Formula A. He asserts that there is virtually no evidence supporting the California Supreme Court’s assertion that the public policy in favor of hiring the handicapped is the main reason for utilizing Formula A. Rassp also states that he is troubled by the Supreme Court’s discussion about rehabilitation from a prior disability in Brodie, in which the Supreme Court in dicta seems to hint that injured employees may have a difficult, if not impossible, burden of proving rehabilitation from a prior injury that did not result in an award or any prior non-industrial injury or condition.


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