August is the final month of the California legislative session for the year. Over the last several years several bills passed during the final months, and some even arrived, sometimes by surprise, during this last month. Indeed, SB 863 and its sweeping changes was introduced, passed and signed by the Governor all in the last week of the 2012 legislative session.

This year, AB 570 seems to be the only substantial workers’ compensation related proposed law on the horizon, at least as known to the industry pundits at this time.

AB 570 in the broad analysis is an attempted rollback of permanent disability apportionment rules. The purpose of the bill is to eliminate elements of what the author believes is gender bias in the workers’ compensation system. According to the author, women can receive disproportionately low compensation amounts for work-related permanent disability because of the gender-specific conditions of pregnancy and childbirth. The author points to specific examples where the evaluating physician has pointed to pre-existing conditions that have involved pregnancy or childbirth in apportioning the causation of subsequent industrial injuries, and argues that this constitutes an inappropriate discrimination, since male injured workers can never have their disability apportioned in this manner.

This bill would prohibit apportionment in the case of a physical injury occurring on or after January 1, 2018, based on pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth. It is similar to AB 1643 (Gonzalez) of 2016 which would have prohibited apportionment in cases of physical injury based on pregnancy, menopause, osteoporosis, and carpal tunnel syndrome. AB 1643 passed the legislature last year but was vetoed by the Governor.

According to the legislative analysis “This issue has been presented to, and debated in, the Legislature in one form or another for at least eight years, and there is a paucity of concrete evidence, either academic or anecdotal, to show that there is pervasive discrimination based on gender, or other protected classes. Proponents cite several examples of cases where women are alleged to have suffered unfair treatment by the system. In these examples it is claimed that the evaluating physician has pointed to the offending apportionment factor. Despite requests for any information indicating that workers’ compensation judges have accepted these apportionment factors, proponents have been unable to do so.”

Unlike previous bills on this subject, AB 570 expressly adds language that brings in other medical conditions that are related to the gender-based condition. Thus, the bill appears to expressly prohibit apportionment not merely to pregnancy or childbirth, but to any other medical condition that pre-dates the industrial injury if that prior condition can be shown to have been related to a pregnancy or child birth. For example, if a pregnancy causes back problems, and those back problems persist as a chronic problem, the bill appears to preclude using that pre-existing condition as a basis to apportion a subsequent industrial back injury. Opponents are concerned about the scope of this provision, and the amount of litigation it would create. They also note the underlying principle that employers should pay for what the job caused, but not pre-existing conditions.

It is likely that if this bill is passed by the legislature, it will be vetoed by the Governor as he has done in the past. Thus, the concept as a bill is alive in it’s eighth year, but certainly not well.