Amicus Curiae Brief — Adams Fruit Co. v. Barrett

|, Supreme Court, U.S.

‘= FILED

NOV 16 499s

No. 88-2035 | ocr F SPAwon ue

oe "lee ee.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1989

ADAMS Fruit COMPANY, INC..

Petitioner,

.

RAMSFORD BARRETT, ET AL..

Respondents.

On Writ OF CERTIORARI

To THe UNITED STATES COURT OF APPEALS

For THE ELEVENTH CIRCUIT

Brier Or THE AMICUS CURIAE

CALIFORNIA WORKERS’ COMPENSATION INSTITUTE

IN SUPPORT OF PETITIONER

MICHAEL A. MARKS, Eso.

Counsel of Record

and

KATHERINE F. THEOFEL, Eso.

FINNEGAN & MARKS

A Professional Corporation

1990 Lombard Street, Suite 300

San Francisco, California 94123

(415) 931-9284

November 1989

i

TABLE OF CONTENTS

I. INTEREST OF THE AMICUS CURIAE.... !

ll. SUMMARY OF ARGUMENT........... l

TE, AED ce cb Obed cccccccceccs. 2

THE PRESUMPTION AGAINST PRE-EMP-

TION IN AREAS WHERE A STATE LEGIT-

IMATELY EXERCISES ITS POLICE POW-

ER CANNOT BE OVERCOME IN THE IN-

STANT CASS Bem Cee db eeccced 6eeese ce. 2

| statutes by anticipating the interrelation-

TABLE OF AUTHORITIES

Cases

Allen-Bradley Local No. 1111. etc. v. Wisconsin

E. R. Board, 315 U.S. 740 (1942) _..........

Barrett v. Adams Fruit Co.. Inc., 867 F.2d 1305

EG ee ee eae

California v. ARC America Corp... US. —. 109

Se GE cu cs cela ae cba cetaches<

California Federal Sav. and Loan Ass'n v. Guerra.

G0 CS obi Se clbdhicdewe Cece o

DeCanas v. Bica, 424 U.S. 351 (1976)... ......

Florida Lime and Avocado Growers, Inc. v. Paul,

Fe Ge knw 06 be Chcwiws odbc

Hillsborough County, Fla. v. Auto. Med. Labs..

Ge Ge San 6 hove us eu eeeeb oki cc

Johansen v. United States, 343 U.S. 427 (1952) ..

Jones v. Rath Packing Co., 430 U.S. $19 (1977) . .

Malone v. White Motor Corp., 435 U.S. 497

GSE o 0 hd 6 oa 6 Gee One ae HE oe bic nc:

Merrill Lynch. Pierce. Fenner & Smith, Inc. v.

ee,

New York State Dept. of Social Services v.

Dublino, 413 U.S. 405 (1973) ... 6 6...

Patterson v. United States, 389 U.S. 495 (1959) _.

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

Gee cecocoveccccescocdusesseeseecs

Rose v. Arkansas State Police, 479 US. 1 (1984) .

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) .

Silver v. New York Stock Exchange, 373 US. 341

a ee ee rea

United States v. Demko, 385 U.S. 149 (1966)... .

45

9.10

2

—E———— eS rl tO eS TO

TABLE OF AUTHORITIES (Continued)

Se

kc nscvenscccccsccee:

ecco avcabnsecccces.

a ws

i es

Nee ween ne

1 A. Larson, The Law Of Workmen's

Compensation §2.10 (1988)................

1 A. Larson, The Law Of Workmen's

Compensation §2.20 (1988) ................

1 A. Larson, The Law Of Workmen's

Compensation §5.30 (1988)................

IC A. Larson, The Law Of Workmen's

Compensation §53.10 (1988) ...............

2A A. Larson, The Law Of Workmen's

Compensation §65.11 (1988) ...............

PAGE(S)

10

I. INTEREST OF THE AMICUS CURIAE

The California’s Workers’ Compensation Institute is a

non-profit research and educational organization. Its mem-

bership is limited to insurers who are authorized to write

workers’ compensation coverage, and its member insurers

currently write ninety-five percent of the California statewide

premium.

The California Workers’ Compensation Institute is

devoted to the maintenance of the California workers’ com-

pensation system and works where necessary to effect admin-

istrative, regulatory and statutory changes. The Institute is

interested in preserving the integrity of the workers’ compen-

sation system and the basic philosophy upon which compen-

sation rests.

Il. SUMMARY OF ARGUMENT

The implementation of a workers’ compensation system

is within the traditional police powers of a state. As such there

iS a presumption against pre-emption of a state statute cre-

ated as an exercise of this police power.

The Eleventh Circuit Court of Appeals incorrectly

decided that the Migrant and Seasonal Agricultural Workers’

Protection Act (AWPA) pre-empted the Florida workers’

compensation statute. Consideration of the aforesaid pre-

sumption against pre-emption compels the finding that pre-

emption is not appropriate in this case.

A strong conflict must exist between the two statutes in

order to overcome the presumption. No such conflict exists in

the instant case in that both statutes provide for redress to

injured workers.

One difference between the two statutes is that under the

state system, workers’ compensation becomes the injured

worker's exclusive remedy. The exclusivity of workers’ com-

pensation is a basic underpinning of a no-fault compensation

system and is crucial to the balance of the system. The

2

employer accepts liability for all industrial injuries, without

regard to fault, and the worker is assured of rapid medical

treatment and compensation, but foregoes the right to sue the

employer for personal injury.

In order for a state to legislate that employers must

accept liability for all work-related injuries without regard to

fault, it is essential that the employer's exposure be limited to

compensation rather than liability based on tort concepts.

The formulation of such a system is a valid exercise of the

state’s police power. Coupled with the fact that Congress has

provided within the AWPA for the substitution of workers’

compensation insurance for liability insurance, and that both

systems seek to compensate injured workers, the federal stat-

ute clearly does not pre-empt the state’s exercise of its police

power.

Ill. ARGUMENT

THE PRESUMPTION AGAINST PRE-EMPTION

IN AREAS WHERE A STATE LEGITIMATELY

EXERCISES ITS POLICE POWER CANNOT BE

OVERCOME IN THE INSTANT CASE

The Supremacy Clause of the United States Constitution

provides that Congress may pre-empt an area of the law. U. S.

Const. Art. VI. In order to determine if state law is pre-

empted by federal law, the only inquiry is to determine the

intent of Congress. California Federal Sav. and Loan Ass'n v.

Guerra, 479 U.S. 272, 280 (1987), citing Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 95 (1983), and Malone v. White

Motor Corp., 435 U.S. 497, 504 (1978).

In California Federal, this honorable Court set out the

three ways that federal law may pre-empt state law. First,

Congress may pre-empt state law by expressly stating the pre-

emption. California Federal, 479 U.S. at 280, citing Jones v.

Rath Packing Co., 430 U.S. 519 (1977). Second, the intent to

pre-empt state law may be inferred when the “scheme of

3

federal regulation is sufficiently comprehensive to make rea-

sonable the inference that Congress ‘left no room’ for supple-

mentary state regulations.” California Federal, 479 US. at

281, citing Rice v. Santa Fe Elevator Corp., 33\ U.S. 218, 230

(1947). Third, even if Congress has not completely displaced

state law,“ . . . federal law may nonetheless pre-empt state

law to the extent it actually conflicts with federal law.” Ca/:-

fornia Federal, 479 U.S. at 281. .

In its decision below, the Eleventh Circuit Court of

Appeals found that the first two bases for pre-emption were

not present, but that the state statute was pre-empted on the

third basis. The Eleventh Circuit did not address the pre-

sumption that state law is not to be pre-empted in an area

traditionally regulated by the states. In California v. ARC

America Corp., — U.S. —, 109 S.Ct. 1661 (1989), this Court

noted that the appellees therein “must overcome the pre-

sumption against finding pre-emption of state law in areas

traditionally regulated by the States.” /d. at 1665. A state's

regulation of an employer's liability and an employee's corre-

sponding remedy is a valid and well-recognized exercise of a

state’s police power. The presumption of the validity of Flor-

ida’s workers’ compensation laws cannot be overcome in this

case.

This Court has held, “When Congress legislates in a field

traditionally occupied by the States, ‘we start with the

assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was a clear

and manifest purpose of Congress.” /d. at 1665, quoting

Rice, 331 U.S. at 230.

This Court has previously indicated that within the

police power of a state is the authority to regulate the employ-

ment relationship in order to protect workers in that state and

that this includes the authority to promulgate workers’ com-

pensation laws. DeCanas v. Bica, 424 U.S. 351, 356 (1976).

The presumption against pre-emption where states’ police

powers are involved has been discussed by this Court in many

4

cases. See Allen-Bradley Local No. 1111, etc. v. Wisconsin

E. R. Board, 315 U.S. 740, 749 (1942): Florida Lime and

Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146 (1963):

Hillsborough County, Fla. v. Auto. Med. Labs., 471 U.S. 707.

715 (1985).

In Hillsborough \ocal ordinances governing blood

plasma collection were challenged as being pre-empted by

federal regulations which set minimum standards on the col-

lection of plasma. This Court set out the additional presump-

tion against pre-emption under the state’s police power and

stated:

Appellee must thus present a showing of implicit

pre-emption of the whole field, or of a conflict

between a particular local provision and the federal

scheme, that is strong enough to overcome the pre-

sumption that state and local regulation of health

and safety matters can constitutionally coexist with

federal regulation.

Id. at 716.

A. Ne conflict exists between the two statutes which

overcomes the presumption against pre-emption.

In the case at bar the question of implicit pre-emption 1s

not at issue but rather whether there is a conflict between the

two statutory schemes that can overcome the presumption in

favor of the state's police power. No such conflict is present

between the Florida and federal statutes. The AWPA pro-

motor vehic'e safety standards. 29 U.S.C. §1841. In addition,

it provides that for any violations of the AWPA a person

aggrieved may bring a private right of action in federal dis-

trict court. 29 U.S.C. §1854.

In the instant case respondents, a group of farm workers,

were injured in an automobile accident during their employ-

ment and received workers’ compensation benefits. More

than one year later they brought private actions under AWPA

5

Section 1854. The district court ruled that inasmuch as they

had received Florida workers’ compensation benefits, work-

ers’ compensation was their exclusive remedy, and, therefore.

they were precluded from using the federal statute's private

right of action. The Eleventh Circuit Court of Appeals

reversed the lower court, holding that AWPA Section 1854

pre-empted the exclusive remedy provision of the Flonda

statute. Barrett v. Adams Fruit Co., Inc., 867 F.2d 1305 (1 ith

Cir. 1989).

The court of appeals failed to consider the presumption

against pre-emption in an area involving a state's police pow-

ers. The court did not examine the statutes to determine if a

strong enough conflict exists between the two to overcome the

presumption, as this Court did in Hillsborough. 471 U.S. at

716.

In the interplay between the two statutes no overwhelm-

ing conflict exists because the underlying purpose of compen-

sating the injured worker has been achieved. Under the

received the necessary medical attention, disability pay-

ments, if applicable, and compensation for lost wages. See

Fla. Stat. §§440.12, 440.13 and 440.15. In this sense the nec-

essary protection of the migrant and seasonal agricultural

workers has been achieved in that they have received medical

treatment and compensation for bodily injures resulting

from motor vehicle accidents.

A head-on conflict between the two statutory schemes

does not exist in this case. In Rose v. Arkansas State Police,

479 U.S. 1 (1986) a head-on conflict between the Public

Safety Officers’ Death Benefits Act and the Arkansas Work-

ers’ Compensation Act existed. In that case the widow of a

state trooper received a $50,000.00 benefit under the federal

act which provided that the benefit was in addition to any

other benefit from any other source. /d at 2. Under the

Arkansas workers’ compensation system the widow applied

for death benefits and the Arkansas Insurance Department

(6

agreed the claim was compensable but indicated that the state

compensation owed was to be reduced by the amount of the

federal benefit. In that case there was a direct conflict between

the two statutes since the federal statute clearly provided for

an additional benefit and the state statute was invalidated. /d.

at 3. No such conflict is posed in the instant case because the

broad purpose of the federal act is served by the benefits of

the workers’ compensation system. The injured worker would

not be able to pursue a private action for bodily injury in

federal court but would still have the private right of action

for other violations of the AWPA.

B. The broad purpose behind the AWPA is to provide

protection to migrant and seasona! agricultural

workers and agricultural employers.

The AWPA provides certain protections for migrant and

seasonal agricultural workers including information and

record keeping requirements (29 U.S.C. §1821), safety and

housing requirements (29 U.S.C. §1823), and motor vehicle

safety (29 U.S.C. §1841), to name some of the provisions of

the AWPA. The statement of Congressional purpose

provides:

It is the purpose of this chapter to remove the

restraints on commerce caused by activities detri-

mental to migrant and seasonal agricultural workers:

to require farm labor contractors to register under

this chapter; and to assure necessary protections for

migrant and seasonal agricultural workers, agricul-

tural associations, and agricultural employers.

29 U.S.C. §1801.

In providing for motor vehicle safety, Congress estab-

lished that when transporting migrant or seasonal agricultural

workers, employers are required to have in place an insurance

policy or liability bond which insures the employer for liabil-

ity against personal injury or property damage. 29 U.S.C.

;

§1841(b\1\C). Additionally, if an employer has state work-

ers’ compensation coverage then no insurance policy or liabil-

ity bond is required when workers are transported under

circumstances where there is coverage under the state work-

ers’ compensation law. 29 U.S.C. §1841(c)(1). By this section

Congress has recognized that workers’ compensation insur-

ance can be substituted for liability insurance. The recogni-

tion of workers’ compensation insurance would imply that

Congress has then recognized the attendant workers’ com-

pensation system including its exclusive remedy provision.

In Section i854 of the AWPA Congress created a private

right of action for anyone aggrieved by a violation of the

chapter. Those violations can include simple record keeping

violations or any of a number of statutory violations. When

viewed as a whole the AWPA provides migrant and seasonal

workers with various protections including motor vehicle

safety. The motor vehicle safety provision, 29 U.S.C. §1841,

provides safety standards and also provides that there shall be

insurance coverage when transporting workers whether that

be through an insurance policy, liability bond or workers’

compensation insurance. In essence, the broad purpose of the

AWPA in the event of a motor vehicle accident causing bod-

ily injury to a migrant or seasonal agricultural worker is to

provide redress for that injury.

By the same token the state workers’ compensation sys-

tem provides the same type of redress for bodily injury.

Under the Florida workers’ compensation system, these

injured workers received medical treatment, disability pay-

ments, if applicable, and lost wages. See Fla. Stat. §§440.12,

440.13, and 440.15. Having received the benefit of the work-

ers’ compensation system, however, workers’ compensation

became the workers’ exclusive remedy. Because compensa-

tion was their exclusive remedy they were then precluded

from pursuing the private right of action included within

AWPA. Nevertheless, these two statutes can be reconciled in

8

that the injured workers received the Protection generally

conceived by the AWPA, namely redress for injury.

In reconciling these two statutes the Court should also

look at the interest of the state in establishing a workers’

compensation system. In its decision against pre-emption in

New York State Dept. of Social Services v. Dublino, 413 U.S.

405 (1973), this Court commented on the legitimate state

interest involved in encouraging its citizens capable of work-

ing to do so. 413 U.S. at 413. In Merrill L ynch, Pierce, Fenner

& Smith, Inc. v. Ware, 414 U.S. 117 (1973), this Court also

commented on California’s strong policy of protecting its

wage earners. 414 U.S. at 139. In the case of workers’ com-

pensation, the state’s policy interest is in providing benefits,

both medical and financial, to its injured workers. “The ulti-

mate ‘social philosophy,’ then, behind nonfault compensa-

tion liability is the desirability of providing, in the most

efficient, most dignified, and most certain form, financial and

medical benefits which an enlightened community would fee!

obliged to provide in any case in some less Satisfactory form,

and of allocating the burden of these payments to the most

appropriate source.” | A. Larson, The Law Of Workmen's

Compensation §2.20, at 7 (1988).

In order to qualify for workers’ compensation benefits

the worker need only demonstrate an injury connected to

employment. The concepts of negligence and fault do not

enter into the compensation System and do not affect the

workers’ recovery. Professor Larson has Stated, “Let the

employer’s conduct be flawless in its perfection, and let the

employee’s be abysmal in its clumsiness, rashness and inepti-

tude: if the accident arises out of and in the course of the

employment, the employee receives his award. Reverse the

positions, with a careless and stupid employer and a wholly

9

innocent employee: the same award issues.” | A. Larson,

supra, §2.10, at 5. By this system, the injured worker is com-

pensated and need not be concerned with proving liability or

fault. By the same token, the employer is responsible for all

work related injuries even if the employer is entirely innocent

of any fault in causing those injuries.

In order to effect this trade-off, where the employer

accepts responsibility for all work-related injuries and the

employee does not have to show anything more than an

injury arising out of the course of employment, this system

becomes the employee’s exclusive remedy. “This is part of

the quid pro quo in which the sacrifices and gains of employ-

ees and employers are to some extent put in balance, for,

while the employer assumes a new liability without fault, he is

relieved of the prospect of large damage verdicts [footnote

omitted].” 2A A. Larson, supra, §65.11, at 12-1, 12-9. In the

balance the worker receives prompt medical treatment and

benefit payments without time-consuming litigation. In a

normal personal injury suit the worker could be forced to wait

years before receiving reimbursement for those medical costs

and lost wages and of course must deal with the problems of

proof and of overcoming the defenses of civil litigation. As

opposed to this time consuming and uncertain process, the

worker is entitled to immediate treatment and benefits under

the workers’ compensation laws. This Court has commented

when discussing workers’ compensation systems:

Historically, workmen’s compensation statutes were

the offspring of a desire to give injured workers a

quicker and more certain recovery than can be

obtained from tort suits based on negligence and

subject to common-law defenses to such suits. Thus,

compensation laws are practically always thought of

as substitutes for, not supplements to, common-law

actions. A series of comparatively recent cases in

this Court has recognized this historic truth and

ruled accordingly. Johansen v. United States, 343

10

U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051, and Patterson

v. United States, 359 U.S. 495, 79 S.Ct. 936, 3

L.Ed.2d 971, for instance, are typical of the recogni-

tion by this Court that the right of recovery granted

groups of workers covered by such compensation

laws is exclusive. Such rulings of this Court have

established as a general rule the exclusivity of rem-

edy under such compensation laws [footnote

omitted].

United States v. Demko, 385 U.S. 149, 151 (1966).

The exclusivity of the workers’ compensation remedy is

undoubtedly essential to the operation of the system. The

employer is forced to compensate its workers for all industria!

injuries regardless of whether the employer is at fault, but at

the same time the employer-is assured that workers’ compen-

Sation 1s its Only liability to workers. Accordingly, employers

are able to insure their workers’ compensation coverage but

do not have the burden of insuring against liability cases by

employees arising from the same injuries.

In enacting workers’ compensation statutes states have a

strong policy interest in providing speedy recovery to their

injured workers whatever the cause of the industrial injury,

but at the same time in providing employers with the protec-

tion that they will not be exposed to further lawsuits beyond

workers’ compensation claims.

; In the instant case Congress has recognized the balanc-

ing between private tort actions and workers’ compensation

systems by providing that in motor vehicle matters, if work-

ers compensation coverage applies, no other insurance need

be obtained. This is a clear indication by Congress that it

meant to balance the existing states workers’ compensation

systems with the overall protection of migrant and seasonal

agricultural workers.

All states currently have workers’ compensation acts in

effect. See 1 A. Larson, supra, §5.30, at 39. However, not all

ll

States’ compensation acts apply to agricultural labor. In fact

in 1985 eleven states excluded farm labor from their compen-

sation statutes. 1C A. Larson, supra, §53.10, at 9-189. In these

states the AWPA private right of action would provide

redress to those workers. However, in those states where a

migrant or seasonal worker is injured such as he is covered by

the state workers’ compensation act, that act would be the

worker's exclusive remedy against the employer. Inasmuch as

Congress has recognized workers’ compensation coverage for

bodily injury in motor vehicle claims, the states’ policy in

creating the exclusive remedy as part of the compensation

system should be left to coexist with the federal statute. To do

otherwise does great violence to the underpinnings of the

compensation system and leaves employers with an unin-

sured loss.

D. Congress specifically reconciled the two statutes

by anticipating the interrelationship of the AWPA

with state workers’ compensation laws.

In discussing the “clear and manifest” requirement of

Congress’ intent to supersede the state power, this Court has

stated, “If Congress had intended to pre-empt state plans

. . . Such intentions would in all likelihood have been

expressed in direct and unambiguous language”. New York v.

Dublino, 413 U.S. at 405. No language in the AWPA indicates

Congress intended to pre-empt the exclusivity provisions of

state workers’ compensation laws. Rather the statute specifi-

cally provides that it is intended to supplement state law. 29

U.S.C. §1871.

In New York v. Dublino this Court dealt with the ques-

tion of whether provisions of the Social Security Act outlining

work incentive programs pre-empted the work rules of the

State of New York for people participating in Aid to Families

With Dependent Children (AFDC). 413 U.S. at 406-07. The

state had enacted work rules which required recipients of

public assistance to participate in efforts at employment both

12

through reporting systems and public works projects. If some-

one defined as employable failed to comply with the require-

ments of the work rules they would be ineligible for

assistance. The Social Security Act also required that state

AFDC plans provide manpower services, training and other

features as a condition to receiving assistance. Upon a chal-

lenge by some of the recipients of assistance the district court

found the Social Security Act pre-empted the state work rules.

This Court could not find Congress’ clear manifestation of

intent to pre-empt and found that the state work rules were

not pre-empted by federal law. /d. at 422.

In examining whether California law which precluded

compulsory arbitration of wage disputes was pre-empted by

federal regulation, this Court commented “our analysis is

also to be tempered by the conviction that the proper

approach is to reconcile ‘the operation of both Statutory

schemes with one another rather than holding one completely

ousted.’ Merrill Lynch, 414 U.S. at 117, quoting Silver v.

New York Stock Exchange, 373 US. 341 (1963). When

viewed as to their broad purposes the Statutory schemes

involved in this case can be reconciled.

in addition to the motor vehicle safety provision of the

AWPA, Congress has provided in Subsection (c) of 29 U.S.C.

Section 1841 that if an agricultural employer provides work-

ers’ compensation coverage for bodily injury or death for

migrant or seasonal agricultural workers, no insurance policy

or liability bond is required if the workers are transported

under circumstances where there is coverage under the state

workers’ compensation law. In this provision Congress has

made an explicit incorporation of the state workers’ compen-

sation law into the workings of the AWPA. This section, in

essence, instructs employers that if they have workers’ com-

pensation insurance that covers their migrant and seasonal

workers, there is no need for an additional insurance policy or

liability bond in the case of bodily injury or death resulting

13

from motor vehicle accidents. The fact that the workers’ com-

pensation forum then becomes the injured worker’s exclusive

forum does not conflict with the federal statute.

This Court has explained, “The subjects of modern

social and regulatory legislation often by their very nature

require intricate and complex responses from the Congress,

but without Congress necessarily intending its enactment as

the exclusive means of meeting the problem [citation omit-

ted].”” New York v. Dublino, 413 U.S. at 415.

The AWPA is indeed a complex response from Congress

but the fact that it is intended to supplement the states’ laws

and makes specific provisions relating to workers’ compensa-

tion insurance indicates that the private right of action under

the AWPA is not the only solution to the problem of redress

for bodily injury. Rather Congress seemed to recognize and

provide for the substitution of workers’ compensation. It is

entirely consistent with this Congressional scheme that work-

ers’ compensation be the injured worker’s exclusive remedy.

IV. CONCLUSION

The Florida workers’ compensation statute was created

by the state under an exercise of its police powers. As such

there is an additional presumption against pre-emption of

this state’s statute. In this instance there is not a strong

enough showing of a conflict between the federal statute and

the state statute in order to justify pre-emption. Moreover,

the two statutes can be reconciled when viewed for the broad

purpose of providing redress to injured workers. Addition-

ally, preserving the state’s police power in its enactment of

workers’ compensation laws should be of paramount consid-

eration. Certainly, the presumption of preservation of a

state’s police power has not been rebutted by any analysis.

Accordingly, the decision of the Court of Appeals for the

14

Eleventh Circuit should be vacated and the decision of the

United States District Court for the Middle District of Flor-

ida reinstated.

Respectfully submitted,

MICHAEL A. MARKS, Esq.

KATHERINE A. THEOFEL, Esq.

FINNEGAN & MARKS

A Professional Corporation

1990 Lombard Street, Suite 300

San Francisco, CA 94123

(415) 931-9284

BY: MICHAEL A. MARKS

MICHAEL A. MARKS, Esq.

Counsel of Record for Amicus Curiae

California Workers’

Compensation Institute

November 16, 1989