The California Assembly has approved a bill that would drastically change California’s workers’ compensation law so that medical problems primarily affecting women will no longer be considered pre-existing conditions in calculating permanent disability benefits after apportionment.
Assemblywoman Lorena Gonzalez says women often receive less pay than men for suffering the same injury because the apportionment law allows discounted rates for pregnancy, breast cancer, menopause, osteoporosis or a psychiatric disability related to those diagnoses. Gonzalez says the out-of-date state law discriminates against women in the workplace and puts California at odds with federal law. According to the author, “[w]hile current law prohibits workers compensation claims from being denied based on certain protected class characteristics, it does not clearly prohibit gender or other characteristics from being taken into account when apportioning an injury. Additionally, current law requires physicians to identify “other factors” when apportioning an injury. This leaves a loophole in which an injury can be attributed to conditions predominantly or only found among the workers’ gender.” Proponents assert that lawyers who represent injured workers report that they have cases where women have had the conditions cited in this bill used as a reason to reduce permanent disability benefits.
The legislative analyst points out that “there are at least three policy rationales underpinning the current apportionment rule. First, it has been deemed unfair to require an employer to pay for disability that was not caused by the employment. Second, if the prior causation was a previous industrial injury that resulted in a PD award, the injured worker would have already been compensated for that portion of the disabling condition. Third, if an employer knew that a job candidate suffered a previous injury that might lead to more expense if he should re-injure himself, the employer might opt to hire someone else who does not pose that financial risk.”
On the other hand, the analyst says that “apportionment as a policy is not without its critics. On a “but for” causation rationale, the injured worker would not be suffering the current disability to any extent but for the current industrial injury. And if the injury were being compensated in the tort system, the person who acted negligently to cause an injury would be responsible for the full extent of the disability, because in tort the “victim’s” preconditions do not operate to diminish the consequences of the acts that cause injury. However, apportionment is the rule in workers’ compensation, and this bill proposes exceptions to the normal rules of apportionment.”
In 2008, SB 1115 (Migden), and in 2011, AB 1155 (Alejo), addressed the apportionment discrimination issue in virtually the same language. Unlike this bill, those bills would have broadly prohibited the use of the protected classes defined in the Unruh Civil Rights Act as a basis to apportion permanent disability awards. Each was vetoed by the Governor. This bill takes a different approach to the issue. Rather than addressing the use of protected characteristics, this bill proposes to prohibit precisely what the AB 1155 veto message notes that courts currently recognize: that apportionment to actual, factual prior industrial or non-industrial causation is acceptable. This bill identifies specific factors that proponents argue are inappropriate apportionment factors, and prohibits their use regardless of whether there is factual causation.
The state Assembly approved the San Diego Democrat’s bill, AB305, on a 57-18 vote Monday, sending it to the Senate.