LEGISLATIVE ROUNDUP: New Bill Sets the Stage for Apportionment Battle

by John P. Kamin (April 2, 2018)

A bill targeting the 3rd District Court of Appeal’s published decision in the City of Jackson v. WCAB is headlining the 2018 legislative session and setting the stage for a debate over whether workers’ compensation judges should allow apportionment to genetic and hereditary factors.

State Senator Steve Bradford, D-Gardena, has introduced the latest version of his bill, SB 899, which calls the 3rd DCA’s decision in the City of Jackson v. WCAB “an abhorrent decision that violates legal norms, undermines legislative intent, and abuses the dignity of injured workers.”

Groups such as the California Applicant’s Attorneys Association (CAAA) have been critical of the decision, whereas insurers believe the decision appropriately limits employer liability to industrial injuries only.

In the City of Jackson v. WCAB decision, the 3rd DCA upheld a workers’ compensation judge’s decision that the City of Jackson had proven that apportionment of disability was 49% attributable to genetic factors. The apportionment was for disability to the applicant’s cervical spine.

The Workers’ Compensation Appeals Board had reversed the trial judge’s decision, concluding that the orthopedic qualified medical evaluator (QME) had apportioned to “impermissible immutable factors” and that the QME had apportioned to causation of injury instead of causation of disability.

The 3rd DCA rejected the WCAB’s analysis in a published decision in April 2017, and the California Supreme Court denied review in August 2017.

SB 899 marks Sen. Bradford’s second attempt to undo the 3rd DCA’s decision. In 2017, he amended SB 617 to create a new Labor Code section (LC 4665) that would have prohibited apportionment of permanent disability (PD) to heredity and genetics. However, the bill was held over to the 2018 session.

SB 899 appears to be an updated version of the bill, and would have proposed Labor Code 4665 read as follows:

4665. The Legislature finds and declares all of the following:
(a) In City of Jackson v. Workers’ Compensation Appeals Board (2017) 11 Cal.App.5th 109 (hereafter City of Jackson), the court of appeal found that the law governing apportionment of disability permits the determination of causation to include “heritability and genetics,” which may result in the reduction of an individual worker’s benefits due to his or her heredity or genetic makeup. In contrast, a prior decision in Rice v. City of Jackson (2015) 2015 WL 575174 (Cal. W.C.A.B.) (hereafter Rice) prohibited apportionment of disability to immutable factors while also referring to “proper apportionment” of disability to “specific identifiable factors.”
(b) The City of Jackson decision effectively legalizes discrimination on the basis of genetics and heritability, including race, gender, and religion, creating disparate impacts in the form of reduced permanent disability benefits to injured workers.
(c) The Legislature has consistently prohibited discrimination on the basis of race, gender, religion, and genetics in employment and governmental benefits.
(d) The City of Jackson decision is an abhorrent decision that violates legal norms, undermines legislative intent, and abuses the dignity of injured workers.
(e) It is the intent of the Legislature in enacting this subdivision to abrogate the decision in City of Jackson and to affirm prior administrative and judicial decisions, including Rice, prohibiting apportionment of disability to immutable factors. It is also the intent of the Legislature that this subdivision does not prohibit apportionment of disability to specific identifiable factors.
The question of whether apportionment to genetic and hereditary factors should be allowed has been a hotly-contested issue, attracting comments from well-known members of the workers’ compensation community on WorkCompCentral articles here, here, and here. Former workers’ compensation judge Raymond Correio also had an interesting take on the City of Jackson decision in this blog post for LexisNexis.

Regardless of your opinion on the topic, your humble blogger predicts that the bill will be popular with the Senate and the Assembly. However, I suspect that Gov. Jerry Brown will likely veto the bill in September 2018 because he has vetoed similar bills in the past.

It’s worth noting that this will be Brown’s last legislative session as California governor. He will be replaced by the winner of this November’s election, as he is barred from serving another term due to term limits.

To read the 3rd DCA’s decision, click here.

OTHER PROPOSED BILLS:

Here are some other bills that were proposed during the early part of the 2018 legislative session. Please note that these bills are merely proposals at this time:
  • AB 479 would require doctors to consider the following factors while analyzing impairment in occupational breast cancer claims:
    • The presence or absence of the organ.
    • Any loss of function of the upper extremity or extremities, including loss of the range of motion, neurological deficits, and lymphedema.
    • Skin disfigurement.
    • Pain.
    • Other impairments caused by the breast cancer, lack of the organ, or treatment related to the injury.
  • AB 1749 was proposed in response to last October’s Las Vegas mass shooting at the Route 91 Harvest festival. This bill states that any peace officer who is injured while protecting others in or out of California, would be entitled to “all of the same benefits the peace officer or his dependents would have received had that peace officer been acting under the immediate direction of his employer.”
  • SB 1086 would repeal a sunset statute for public safety responders to file a death claim for deaths suffered during active service. Currently, public safety workers have 420 weeks to file a claim. However, that statute is set to “sunset” or “expire” on 1/1/19, which would mean that the statute of limitations to file a death claim would revert back to 240 weeks.
  • AB 2082 proposes the creation of a new state-run program called the “Insurance Payment Intercept Program” aimed at helping the enforcement of payment of child support. The bill could directly impact workers’ compensation arena by helping the Department of Child Support Services identify more workers’ compensation liens.
  • AB 2046 would require governmental agencies to provide other governmental agencies with information about potential workers’ compensation fraud, when requested. This bill would also require insurers to notify their local DAs and the Department of Insurance about suspected fraud cases.
  • SB 183 proposes to limit the actions of federal immigration officials in state buildings, such as WCAB offices.
  • AB 206 proposes to do away with the exemption for employers to provide workers’ compensation coverage for workers who perform less than 52 hours of work during a 3-month period.
John P. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Tarzana location, where he heads the firm’s Sports Law Division. Mr. Kamin previously worked as a journalist, where he reported on work-related injuries in all 50 states. Feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.

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