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SB-899 Workers’ compensation.(2017-2018)

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Date Published: 06/20/2018 04:00 AM
SB899:v96#DOCUMENT

Amended  IN  Assembly  June 19, 2018
Amended  IN  Senate  April 26, 2018
Amended  IN  Senate  March 07, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 899


Introduced by Senator Pan

January 16, 2018


An act to add Section 4665 to amend Section 4663 of the Labor Code, relating to workers’ compensation.


LEGISLATIVE COUNSEL'S DIGEST


SB 899, as amended, Pan. Workers’ compensation.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of his or her employment.
Existing law makes an employer 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 also requires that apportionment of permanent disability be based on causation and causation, and requires the physician to determine the approximate percentage of the 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 a physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury to address in that report the issue of causation of the permanent disability.

In City of Jackson v. Workers’ Compensation Appeals Board (2017) 11 Cal.App.5th 109, 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.

This bill would set forth a statement of legislative findings and declarations stating, among other things, that the City of Jackson decision is an abhorrent decision that violates legal norms, undermines legislative intent, and abuses the dignity of injured workers. The bill would express the intent of the Legislature to abrogate the decision and affirm prior decisions prohibiting apportionment of disability to immutable factors. The bill would also express the intent of the Legislature that these provisions do not prohibit apportionment of disability to specific identifiable factors.

This bill would prohibit a physician from using race, gender, or national origin in determining the percentage of permanent disability that was caused by other factors before and subsequent to the industrial injury.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

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


SECTION 1.

 Section 4663 of the Labor Code is amended to read:

4663.
 (a) Apportionment of permanent disability shall be based on causation.
(b) A physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall address in that report the issue of causation of the permanent disability.
(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must shall include an apportionment determination. A physician shall make an apportionment determination by finding what the approximate percentage of the permanent disability that was caused by the direct result of injury arising out of and occurring in the course of employment and what 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. injuries, but excluding race, gender, and national origin. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.
(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.
(e) Subdivisions (a), (b), and (c) do not apply to injuries or illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2.

SECTION 1.Section 4665 is added to the Labor Code, to read:
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.