LEGISLATIVE ROUNDUP: BROWN VETOES ANTI-APPORTIONMENT BILL IN LAST LEGISLATIVE SESSION

by John P. Kamin (November 12, 2018)

Outgoing Gov. Jerry Brown vetoed a controversial bill during his last legislative session that would have nullified a California appellate court decision by limiting apportionment to nonindustrial factors, while approving less controversial bills benefiting peace officers and anti-fraud investigators.

Brown is being ousted from his second term as the Golden State’s governor due to term limits, and will hand the reins over to incoming Gov. Gavin Newsom in January 2019. No stranger to controversy, the outgoing governor has spent most of the last few years in the public eye fighting the likes of President Donald Trump on issues like immigration, health care, and environmental issues.

In the workers’ compensation arena, Brown has had a far more conservative legacy than many lobbyists anticipated. For instance, he has regularly vetoed legislation that would attack defendants’ ability to obtain apportionment to nonindustrial factors, while strengthening anti-fraud efforts through bills like 2012’s Senate Bill 863, which have allowed the state to stay or dismiss liens related to criminal indictments.

During this last session, Brown stayed true to his reputation by vetoing SB 899. (Not to be confused with the 2005 omnibus reform bill bearing the same name.) The 2018 version of SB 899 would have hurt defendants’ ability to obtain apportionment to nonindustrial factors by barring doctors from using race, gender, or national origin in determining the percentage of permanent disability caused by factors before and after an industrial injury.

Lawmakers crafted SB 899 to in an attempt to overturn the 3rd District Court of Appeal’s published decision in the City of Jackson v. WCAB, where the appellate court found that the defendant had established apportionment of 49% to nonindustrial genetic factors. The appellate court had disagreed with and reversed the Workers’ Compensation Appeals Board’s (WCAB) decision in the case, as the WCAB had concluded that the qualified medical evaluator in the case had apportioned to “impermissible immutable factors.”

Over the years, Gov. Brown has explained his rationale very simply – that employers cannot be liable for nonindustrial factors.

We fully expect that lawmakers will attempt to send similar legislation to the desk of Gov. Gavin Newsom during future legislative sessions.

BILLS APPROVED DURING THIS SESSION

Gov. Brown also approved a number of bills this legislative session, which means that unless noted otherwise, they will take effect on Jan. 1, 2019. These bills include:
  • AB 1749 – This bill allows employers the discretion to accept peace officers’ workers’ compensation claims for out-of-state injuries. This legislation arose after the tragic Oct. 1, 2017 mass shooting in Las Vegas, where many Californians were in attendance and injured. Unfortunately, such shootings have become much more common in our society, and it only seems fair to give local governments the power to accept a claim filed by heroic peace officers who were injured while saving the lives of innocent people. In this particular legislation, it allows those local governments to retroactively accept peace officers’ claims stemming from the Oct. 1, 2017 shooting in Las Vegas.
  • SB 880 – This bill creates a four-year pilot program that allows employers to pay temporary disability (TD) benefits with prepaid debit cards, in cases where the applicant is willing to receive payment this way. The pilot program gives employers a chance to prove that these prepaid cards are a good idea. Personally, I think this could solve many of the payment problems that tend to arise when applicants aren’t used to picking up their mail, or don’t have a safe and secure mailing address.
  • AB 2046 – This new law requires state agencies like the Employment Development Department (EDD) to share evidence of workers’ compensation fraud with investigators. In short, this means that if your local district attorney requests information from the EDD during a fraud investigation, that the EDD has to turn that information over to them.
  • SB 1086 – This bill permanently allows public safety workers’ and their decedents up to 420 weeks to file death claims. Due to the expiration of some old legislation, the 420-week period was set to revert back to the standard 240-week timeframe on Jan. 1, 2019. However, lawmakers and the governor agreed to the extension, which means that public safety workers’ dependents now have up to 420 weeks from the date of injury to file death claims.
VETOED BILLS

Gov. Brown also vetoed the following two noteworthy bills, which means that they will not become law in 2019:
  • AB 2496 – This bill would have created a rebuttable presumption that janitorial service workers are employees, and not independent contractors.
  • AB 479 – This bill would have required doctors to consider numerous additional factors while analyzing impairment in breast cancer claims, including:
    • Pain.
    • Skin disfigurement.
    • 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.
    • Other impairments caused by the breast cancer, lack of the organ, or treatment related to the injury.
It’s worth noting that when Gov. Brown vetoed AB 479, he ordered regulators at the DWC and the Commission on Health and Safety and Workers’ Compensation (CHSWC) to complete a study by March 1, 2019, to analyze:
  • The accuracy of impairment rating standards for cancer claims;
  • Differences between the 5th and 6th editions of the AMA Guides to the Evaluation of Permanent Impairment;
  • Whether the current impairment rating standards are biased for/against certain immutable characteristics, such as race, gender, or ethnicity.
Brown ordered the study to help lawmakers decide whether future legislative changes to impairment rating in cancer cases are necessary.

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 and watches the recent legislative efforts. 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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