The California Senate voted 24-15 to approve a bill (AB 305) that would prohibit medical problems primarily affecting women from being considered pre-existing conditions when calculating workers’ compensation benefits. The bill now returns to the Assembly for a final vote.

This bill prohibits apportionment if pregnancy or menopause is contemporaneous with the injured worker’s claimed injury. This bill also requires that breast cancer not be less than the comparable impairment rating for prostate cancer. It also prohibits apportionment in cases of psychiatric injury caused by sexual harassment or any of the conditions listed above if the conditions are contemporaneous with the psychiatric injury.

Senate Floor Amendments of 9/3/15 remove “osteoporosis casually related to menopause” from the list of conditions where apportionment is prohibited.

According to state Sen. Marty Block (D-San Diego), the bill is part of an effort to end gender bias in the workplace. Some proponents of the bill have argued that the AMA Guides are not objective, specifically in the area of gender-specific injuries. Specifically, proponents point to the fact that the AMA Guides rate the removal of female breasts at a WPI of 0%, while the removal of a prostate would rate a 16%-20% WPI, arguing that such a rating shows bias against women.

Opponents argue that AB 305 is an attempt to undermine an employer’s use of apportionment when determining liability for permanent disability awards. Specifically, opponents note that apportionment is more than a decade old and ensures that employers do not need to pay for non-industrial injuries. Further, opponents point to case law and statute which protects injured workers from abusive apportionment, including apportionment on the basis of gender. Opponents further argue that AB 305 will increase litigation, raise indemnity costs on employers, and increase systemic instability and subjectivity.