Workers' Compensation

California WCAB Panel Rules on Apportionment to Age Related Pathology - Kos v. Kimes-Morris Construction

In what appears to be a case of first impression, an Appeals Board panel held in Kos v. Kimes-Morris Construction that Calif. Labor Code § 4663 does not discriminate against age by apportioning to age related pathology. The WCAB held that substantial evidence supported apportionment of 90-percent of the applicant's total permanent disability to non-industrial degenerative disc disease and 10-percent to her 3/18/2002 industrial injury under Calif. Labor Code § 4663, and that even if § 4663, to the extent it allows apportionment to age-related degenerative disc disease, violates FEHA's prohibition against age discrimination in employment (see Calif. Government Code § 12940(a)) and violates Calif. Government Code § 11135, the WCAB must construe Calif. Labor Code § 4663 to effectuate the legislative intent behind the statute that apportionment to causation may be based on age-related degenerative conditions, and must adhere to the later and more specific enactment of Calif. Labor Code § 4663 apportionment statute over earlier more general age discrimination provisions.

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