Hertz Corporation v. Workers' Compensation Appeals Board (Workers' Compensation)

Sixth District

Cite as 2008 SOS 6762

Filed December16, 2008

Portion of a California Claimant’s Disability Associated with Illiteracy and Language Difficulties Granted

Manuel Aguilar worked as an auto washer for Hertz Corporation (Hertz) since 1985. In March 2000, he injured his left knee and, on 2001 and 2002, he sustained a cumulative injury to his wrists, shoulders, both ankles, and right knee.

He received medical treatment, including surgery, for his injuries, and temporary disability indemnity during broken periods beginning May 8, 2001. He last reported for work on January 29, 2002.

He filed three separate applications for adjudication of his workers’ compensation claim for permanent disability indemnity, the first for the left knee injury (SJO226456), the second for the cumulative shoulder, wrist and ankle injuries (SJO228891), and the third for the right knee injury (SJO235420). He also requested vocational rehabilitation services.

On August 15, 2005, Dr. Gordon Levin submitted a report finding that Aguilar’s injuries were permanent and stationary, so Aguilar was referred to The Simon Group for vocational rehabilitation services. At a hearing on September 18, 2007, independent certified rehabilitation counselors James Westman and Lei Huff testified also submitted reports and agreed that Aguilar suffered both specific and cumulative injuries and had substantial work preclusions.

According to the WCJ, both examinations indicated a permanent disability rating of around 60 percent. The tests found that Aguilar “is precluded from working at or above shoulder height and has lost 50 percent of his pre-injury capacity for lifting with the upper extremities”. Dr. Levin further found that Aguilar would not be able “to return to his normal job as a car detail person.”

Due to Aguilar's injuries and his inability to read and write English, the workers' compensation judge (WCJ) found him to be non-feasible for vocational rehabilitation and thus permanently totally disabled. The Workers' Compensation Appeals Board (the Board) affirmed the WCJ's decision and award.

Hertz contended that an employer should not be liable for permanent total disability benefits when an injured worker's inability to participate in rehabilitation is due, in part, to “nonindustrial causes”. Hertz argued in part that Aguilar's limited English language skills, virtual illiteracy even in his native Spanish, and his lack of academic training and aptitude should be reflected by providing him with an appropriate partial, rather than total, permanent disability rating.

The Sixth District court of appeals determined that the Board's finding of 100 percent permanent disability in this case was based in part on the finding of vocational non-feasibility, that is, a finding of permanent inability to compete in an open labor market. The finding of vocational non-feasibility was based in part on pre-existing, nonindustrial factors, that is, Aguilar's inability to read and write in English.

The appeals court therefore held that Hertz should only be liable for that portion of Aguilar's permanent disability that was directly caused by his industrial injuries, and Hertz was not liable for that portion that is caused by pre-existing nonindustrial factors.

Therefore, the Worker’s Compensation Appeals Board's finding of 100 percent permanent disability should be annulled, and the matter must be remanded to the Board for a re-determination of Aguilar's permanent disability rating.