Welcome back from the weekend, my dear readers.  It was a good to see you all attend the funeral pyre of California’s MPN, but one can only hope our next meeting will be under happier circumstances.

Today, your humble blogger brings you a different case, William Slagle v. Department of Corrections California Men’s Colony.  Applicant, a 65-year-old dental lab technician instructor, was evaluated by an Agreed Medical Evaluator for various injuries to various body parts, among them his right knee.  The AME found that 80% of the damage sustained by applicant’s knee was caused by his industrial injury, but 20% was caused by non-industrial degenerative changes.

During his deposition, the AME said “the degenerative findings in [applicant’s] knee are related to the fact that he’s 64 years old.  I don’t think it is unremarkable for a 64-year-old person to have some degenerative changes in their knee.”

Applicant’s counsel seized upon this to claim that the award, based on the AME’s opinions, constitutes illegal age-discrimination in violation of Government Code section 11135.  Needless to say, the WCJ was not impressed, and neither was the Workers’ Compensation Appeals Board.  The fact that applicant’s age makes the degeneration of his knees “unremarkable” is not age discrimination.

The Court of Appeal likewise denied applicant’s petition for a writ of review.

But, as a defense attorney, I can’t help but think about the other side of the coin.  Let’s say a 35 year-old applicant sustains the same type of injury and the Agreed Medical Evaluator notices some sort of degeneration on his knee.  The AME then concludes that it is “remarkable” to find that sort of degeneration on a person of that age, so the damage must be industrial.

In the Slagle case, the AME noted that the degeneration found just three months after the date of injury appeared to have been present since before the date of injury.  In the case of a 35 year-old, perhaps it would be appropriate to ask the same question: is it possible that this much degeneration would have occurred only since the date of injury?