This year the California legislature passed SB 788, and sent the bill to Governor Newsom for signature. The bill would have added the following language to Labor Code 4663, one of the permanent disability apportionment statutes.
“The approximate percentage of the permanent disability caused by other factors shall not include consideration of race, religious creed, color, national origin, gender, marital status, sex, sexual identity, or sexual orientation.” The source of this bill was the California Applicants’ Attorneys Association. Assembly amendments in the legislative process removed genetic characteristics and age as factors that would be prohibited.
Most of the legislative effort to limit apportionment over the last few years has been in response to case law. In April 2017, the Court of Appeal published its decision in the case of 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.
The letter response by Governor Newsom reads as follows:
“I am returning Senate Bill 788 without my signature. This bill would preclude a physician from using certain characteristics as the basis for apportionment of permanent disability.”
“Current law states that physicians shall not apportion the percentage of permanent disability awarded based on the gender,race, or other personal characteristic of the employee and provides protection from the inappropriate application of apportionment law.”
“Instead, physicians are required to apportion the disability award based solely upon the employee’s own medical history and medical evidence.”
“While I support efforts to combat bias within the medical profession, this bill creates confusion with well-settled law, which is likely to result in increased litigation and subsequent delays to much-needed benefits to workers.”
“Ongoing efforts by the Division of Workers’ Compensation to implement mandatory continuing education of medical-legal evaluators related to current anti-bias is better suited to achieve the intent of this bill.”
On this recurrent legislative issue, Newsom followed vetoes by Governor Brown on several apportionment bills passed by the legislature in years past.
In 2018, Governor Brown vetoed AB 479. This proposed law would have set limits to apportionment of permanent disability in cases involving breast cancer. Brown’s veto message noted that it was similar to three previous measures that he has vetoed, Assembly Bill 570 in 2017, Assembly Bill 1643 in 2016 and Assembly 305 in 2015.
Brown said that AB 479, and its predecessors, have repeatedly singled out specific conditions and proposed a special set of rules that apply to them. This would result in an even more complex workers’ compensation system that would essentially be “disease by statute,” which would ultimately burden injured workers seeking quick resolution to their claims.