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.”
The proposed law was likely a response to a few recent decisions that 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.
SB 731 has been passed by the California Senate on 5/19/2019, and sent to the State Assembly as of 5/22/2019. On 5/30/2019 the bill was sent to the Insurance Committee, and as of the end of the legislative session this year, has not had a finding by that Committee. Thus SB 731 will not be passed this year.
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 be passed by the legislature the next legislative session. It is not clear what response Governor Gavin Newsom will have if it is passed. However, the bill is not yet an urgency bill, so the effective date would be no earlier than January 1, 2021 if passed and signed next year. Employers who have cases in litigation involving apportionment issues would have more than one year to bring those cases to a conclusion.