A few recent decisions have enhanced the ability of employers to obtain apportionment of permanent disability. However the court successes may be short lived as a new proposed law is rapidly gaining momentum in the California Legislature to limit or water down apportionment law adopted in 2004 by S.B. 899.

In April 2017, the Court of Appeal published its decision in the City of Jackson v WCAB (Rice) which confirmed apportionment to genetic factors. Christopher Rice was a police officer who suffered a spine injury. A PQME found that genetic factors were significant factors in his permanent impairment. The Court of Appeal reversed the WCAB which refused to allow apportionment to genetics.

In December 2018, the Court of Appeal published its decision in City of Petaluma v WCAB and Aaron Lindh. In that case a PQME concluded that 85 percent of his disability was due to a previously asymptomatic, underlying condition. The ALJ, however, rejected apportionment and reconsideration was denied by the WCAB. The Court of Appeal reversed, and granted apportionment finding that the requirement that the asymptomatic preexisting condition will, in and of itself, naturally progress to disable the claimant. was “the law prior to 2004” and is no longer a requirement for apportionment to an underlying condition.

And recent panel decisions show that the WCAB seems to be ruling in conformity with these decisions. In the 2018 WCAB panel decision in Schuy v City of Yuba, the WCJ rejected the opinion of and AME that said that Marilyn Schuy’s continuous trauma low back injury was 50% caused by progression of a degenerative back condition. A WCAB panel reversed citing the Court of Appeal City of Jackson v Rice, and the provisions of Labor Code sections 4663 & 4664(a) which allows apportionment to non industrial causation.

This year the California Legislature again introduced legislation poised to limit apportionment in several ways with SB 731. The proposed law adds a sentence to LC 4663 (c) “The approximate percentage of the permanent disability caused by other factors shall not include consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.”

SB 731 has been passed by the California Senate on 5/19/2019, and is now being heard in the State Assembly as of 5/22/2019. Clearly the proposed law will nullify City of Jackson v WCAB (Rice) since apportionment in that case was based on genetics. Apportionment in the Schuy case which is based upon a degenerative condition is arguably based upon “age” as well, a factor to be outlawed if the bill becomes law.

Similar bills were passed by the legislature and then vetoed by Governors Arnold Schwarzenegger and Jerry Brown for many years. It is likely that SB 731 will again be passed by the legislature. It is not clear what response Governor Gavin Newsom will have if itis passed.