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AB-479 Workers’ compensation: permanent disability apportionment.(2017-2018)

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Date Published: 08/22/2018 09:00 PM
AB479:v94#DOCUMENT

Enrolled  August 22, 2018
Passed  IN  Senate  August 13, 2018
Passed  IN  Assembly  August 20, 2018
Amended  IN  Senate  May 21, 2018
Amended  IN  Assembly  January 12, 2018
Amended  IN  Assembly  January 03, 2018
Amended  IN  Assembly  March 27, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill
No. 479

Introduced by Assembly Member Gonzalez Fletcher
(Coauthor: Assembly Member Caballero)

February 13, 2017

An act to amend Section 4660.1 of the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


AB 479, Gonzalez Fletcher. Workers’ compensation: permanent disability apportionment.
Existing workers’ compensation law generally requires employers to secure payment of workers’ compensation, including medical treatment, for injuries incurred by their employees that arise out of, or in the course of, employment. An employer is liable only for the percentage of permanent disability directly caused by the injury arising out of, and occurring in the course of, employment.
Existing law requires apportionment of permanent disability to be based on causation, and a physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury is required to address the issue of causation of the permanent disability. The physician is required to make an apportionment determination by finding the approximate percentage of permanent disability that was caused by the direct result of injury arising out of and occurring in the course of employment, and the approximate percentage of the permanent disability that was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. Existing law requires the determination of the percentages of permanent partial or permanent total disability to incorporate specified descriptions and measurements of physical impairments and provides for disability ratings schedules. Existing law also specifically requires the administrative director to adopt at a public hearing regulations concerning procedures to be followed by all physicians in evaluating the existence and extent of permanent impairment and limitations resulting from an injury in a manner consistent with the provisions governing apportionment, as specified.
The bill would require, if an employee sustains an injury arising out of and in the course of employment resulting in breast cancer, specified impairments to be considered, including the presence or absence of the organ, skin disfigurement, and pain, among other things. The bill would also provide that whether the person is of childbearing age shall not be a determining factor when determining impairment due to breast cancer.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 4660.1 of the Labor Code is amended to read:

4660.1.
 This section applies to injuries occurring on or after January 1, 2013.
(a) In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of injury.
(b) For purposes of this section, the “nature of the physical injury or disfigurement” shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee’s whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4.
(c) (1) Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. This section does not limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.
(2) An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following:
(A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3.
(B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury.
(3) If an employee sustains an injury arising out of and in the course of employment resulting in breast cancer, both of the following shall apply:
(A) The impairments to be considered shall include all of the following:
(i) The presence or absence of the organ.
(ii) Any loss of function of the upper extremity or extremities, including loss of the range of motion, neurological deficits, and lymphedema.
(iii) Skin disfigurement.
(iv) Pain.
(v) Other impairments caused by the breast cancer, lack of the organ, or treatment related to the injury.
(B) Notwithstanding subdivision (b), whether the person is of childbearing age shall not be a determining factor when determining impairment.
(d) The administrative director may formulate a schedule of age and occupational modifiers and may amend the schedule for the determination of the age and occupational modifiers in accordance with this section. The Schedule for Rating Permanent Disabilities pursuant to the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) and the schedule of age and occupational modifiers shall be available for public inspection and, without formal introduction in evidence, shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule. Until the schedule of age and occupational modifiers is amended, for injuries occurring on or after January 1, 2013, permanent disabilities shall be rated using the age and occupational modifiers in the permanent disability rating schedule adopted as of January 1, 2005.
(e) The schedule of age and occupational modifiers shall promote consistency, uniformity, and objectivity.
(f) The schedule of age and occupational modifiers and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule, amendment, or revision, as the case may be.
(g) This section does not preclude a finding of permanent total disability in accordance with Section 4662.
(h) In enacting Chapter 363 of the Statutes of 2012 it is not the intent of the Legislature to overrule the holding in Milpitas Unified School District v. Workers’ Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808.
(i) The Commission on Health and Safety and Workers’ Compensation shall conduct a study to compare average loss of earnings for employees who sustained work-related injuries with permanent disability ratings under the schedule, and shall report the results of the study to the appropriate policy and fiscal committees of the Legislature no later than January 1, 2016.