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AB-1481 Workers’ compensation: permanent disability: reports.(2003-2004)

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CALIFORNIA LEGISLATURE— 2003–2004 REGULAR SESSION

Assembly Bill
No. 1481

Introduced  by  Assembly Member Richman
 (Coauthor(s): Assembly Member Cogdill, Houston, Maddox, Wyland)

February 21, 2003

An act to add Sections 4062.7 and 5705.1 to the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


AB 1481, as introduced, Richman. Workers’ compensation: permanent disability: reports.
(1) Existing law establishes a workers’ compensation system to compensate an employee for injuries sustained in the course of his or her employment. Under this system, the Workers’ Compensation Appeals Board has jurisdiction to determine these claims, including determinations regarding apportionment of injury.
This bill would provide that in denying apportionment, the appeals board may not, in determining permanent disability, rely on any medical report that fails to fully address the issue of apportionment and fails to set forth the basis for the medical opinion, on any medical report that fails to apportion a previous injury or illness that has been the subject of a prior claim for damages, or on any medical report that fails to provide a discussion of the medical processes by which a previously asserted injury or illness resolved without affecting bodily function.
This bill would provide that if an applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. The bill would also prohibit the accumulation of all permanent disability awards issued to one individual employee from exceeding 100% unless the employee’s injury or illness is conclusively presumed to be total in character.
This bill would prohibit the payment of permanent disability and death benefits unless the industrial injury has contributed at least 10% to the cause of the death or disability when compared to all causes of injury in total.
(2) Existing law specifies which party must bear the burden of proof in various aspects of workers’ compensation proceedings.
This bill would provide that the burden of proof for apportionment regarding permanent disability, as specified, shall rest on the defendant and would specify the standard of proof.
(3) Existing law provides for the submission of evaluations and reports to the appeals board by an employee’s treating physician and an independent medical evaluator for purposes of determining the extent of an employee’s permanent disability.
This bill would require, on and after January 1, 2004, that all evaluations and reports prepared by a physician with regard to the degree of permanent whole body impairment that an employee has sustained be based upon demonstrable medical evidence that indicates how the impairment restricts the function of the body or its members, organs, or psyche. The bill would require the physician to use established medical guidelines in accordance with specified publications, and would provide that deviations from the guidelines contained in publications shall not constitute a basis for excluding evidence from consideration, but would be considered in determining the weight given to that evidence. It would also prohibit disability ratings from being based on all evaluations and reports that do not follow the established medical guidelines contained in these publications, and would provide that failure by a physician to comply with these provisions may result in the disapproval of the physician’s fee for the evaluation or report.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 4062.7 is added to the Labor Code, to read:

4062.7.
 (a) On and after January 1, 2004, all evaluations and reports prepared by a physician with regard to the degree of permanent whole body impairment that an employee has sustained shall be based upon demonstrable medical evidence that indicates how the impairment restricts the function of the body or its members, organs, or psyche.
(b) For purposes of subdivision (a), the physician shall use established medical guidelines including the American Medical Association guides to the evaluation of permanent impairment, the American Psychiatric Associations’ Diagnostic and Statistical Manual of Mental Disorders, the Manual for Orthopedic Surgeons in Evaluating Permanent Physical Impairment, and the Snellen Charts published by the American Medical Association Committee for Eye Injuries. Deviations from the guidelines contained in these publications shall not constitute a basis for excluding evidence from consideration, but shall be considered in determining the weight given to that evidence. Disability ratings shall not be based on all evaluations and reports that do not follow the established medical guidelines contained in these publications.
(c) This section shall apply to all evaluations and reports provided to the appeals board by an employee’s treating physician or an independent medical examiner.
(d) Failure by a physician to comply with this section may result in the disapproval of the physician’s fee for the evaluation or report.

SEC. 2.

 Section 5705.1 is added to the Labor Code, to read:

5705.1.
 (a) The burden of proof for the apportionment regarding permanent disability under Sections 4663, 4750, and 4750.5 shall rest upon the defendant. In accordance with Section 3202.5, the defendant shall demonstrate by a preponderance of the evidence, and by reasonable medical probability, that absent the industrial injury, the injured worker had lost, as a consequence of a preexisting injury or illness, some capacity to perform the activity affected by the injury.
(b) Notwithstanding any other provision of this code relating to workers’ compensation benefits, including Section 4062.9, in denying apportionment the appeals board may not, in determining permanent disability, rely on any medical report that fails to fully address the issue of apportionment and fails to set forth the basis of the medical opinion. In denying apportionment, the appeals board may not rely on any medical report that fails to apportion a previous injury or illness that has been the subject of a prior claim for damages or that fails to provide a discussion of the medical processes by which a previously asserted injury or illness resolved without affecting bodily function.
(c) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury.
(d) The accumulation of all permanent disability awards issued to one individual employee shall not exceed 100 percent unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662.
(e) Permanent disability or death benefits shall not be payable unless the industrial injury has contributed at least 10 percent to the cause of the disability or death when compared to all causes of injury in total.