Senate Bill 731: "And the apportionment goes to...."
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Apportionment in California Workers' Compensation is posed for a dramatic change as Senate Bill 731 (SB 731) gains momentum in the California legislature. If enacted into law, SB 731 would prohibit apportionment of permanent disability based on race, religion, creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics.
Currently, the law requires apportionment of the causation of the worker's permanent disability. According to Cal. Lab. Code §4663, a physician is required to determine all of the causative sources of the worker's permanent disability. Apportionment must be proven by presentation of substantial medical evidence, which describes the extent to which permanent disability, claimed by an injured worker, has been caused by all factors including a preexisting condition, hereditary, or genetic disease.According to Benson v. Workers' Comp. Appeals Bd. (75 Cal. Comp. Cases 113 (2009)), in order for the physician's report to be accurate, it must include apportionment factors, giving consideration not only to the current industrial injury, but also to any prior or subsequent industrial injuries, as well as any prior or subsequent non-industrial injuries or conditions. If the physician cannot do so, he or she must state the reasons why after an evaluation or consultation with at least one other physician. (Cal. Lab. Code §4663)
Apportionment of permanent disability is necessary to an applicant's workers' compensation claim to satisfy Cal. Lab. Code §4664(a), which states that the employer "shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." Further, apportionment allows a doctor to paint the entire picture of a person's injury, proving the injury is not necessarily 100 percent the fault of the employer. Therefore, causation should not be entirely allocated to the employer if other factors (such as genetics, sex, race, age, etc.) play a role in the applicant's disability.
SB 731 has been strategically designed to dilute and limit existing apportionment law adopted under SB 899. Thus, by limiting apportionment, SB 731 precludes implicit causes of permanent disability, including the natural development of non-industrial disorders or illnesses, to be taken into account in apportioning permanent disability. Apportionment, as currently constituted, creates a system of fairness to the employer by ensuring the employer is only liable for the proportion of permanent disability directly caused by the industrial injury.
If SB 731 were to pass, apportionment findings will be impacted in a profound way. SB 731 would create bias in the medical reporting system and insurance companies/employers will be forced to assume full responsibility for a worker's disability, regardless of other non-industrial factors. Arguments for the changes in the apportionment law state the changes may eliminate some bias in medical reports leading to an increase of the amount paid to the injured worker for permanent disability benefits. However, maintaining the integrity of the medical reporting system and the precise evaluation of benefit that an injured worker should receive outweigh any potential bias that current apportionment law may create.
The pitfalls of SB 731 will be hard to overcome as I predict the bill will create several legal issues. SB 731 would give rise to increased litigation costs to employers due to the direct conflict of the language of SB 731 with that of Cal. Lab. Codes §4663(c) and §4664 resulting in confusion for the injured worker and their representatives. Additionally, SB 731 would nullify prior precedent case law, which would make apportionment determinations nearly impossible for any physician. Lastly, SB 731 would open the door to excessive and inaccurate permanent disability payments paid out to injured workers because of incomplete medical evaluation reports.
The original text for SB 731 can be found here: