New Legislative Effort to Prohibit Apportionment to Genetics

Prior to 2004, the WCAB was required to allow compensation to an injured employee not only for the disability resulting solely from the employment, but also for disability resulting from the acceleration, aggravation, or “lighting up” of a prior non-disabling disease.  Apportionment of the injured worker’s permanent disability was justified only if the WCAB found that the portion of the current disability would have resulted from the normal progress of the underlying nonindustrial disease.

 But the 2004 reform bill (SB 899) amended LC §4663, mandating that 1) apportionment of PD be based on causation and 2) an evaluating physician make a determination of apportionment by finding the approximate percentage of PD caused as a direct result of the injury and the approximate percentage caused by other factors before and subsequent to the industrial injury.  SB 899 also added LC §4664, definitively outlining the limitations of the employer’s liability:  “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.”

Over the past several years, state lawmakers, the California Applicants’ Attorneys Association, and others have repeatedly tried through legislation and the courts to alter the apportionment standards and expand employers’ liability beyond workplace factors.  In 2011, 2015, and 2016, Governor Brown vetoed bills that would have prohibited apportionment to various pre-existing conditions and protected characteristics, while just last month the state Supreme Court denied a request to review the published Court of Appeal decision in City of Jackson v. WCAB (Rice), which held that apportionment to causation may properly include apportionment to a combination of genetic and environmental factors and that such apportionment is not discrimination based on disability or objectionable risk factors.  

This week, the effort to prohibit apportionment based on genetic factors took a new turn when Senator Steve Bradford, chair of the Senate Committee on Labor and Industrial Relations, gutted and amended another workers’ comp bill (SB 617) in a move that would effectively overturn the Rice decision.  The amended bill would add a new section to the Labor Code (§4665), specifying that “Notwithstanding any other law, including, but not limited to, Section 4663, heredity and genetics shall be excluded as bases of causation for purposes of determining the apportionment of permanent disability.”

Because there is less than a month left in this year’s legislative session, SB 617 will likely be carried forward into the 2018 session as a 2-year bill.  The Institute will continue to monitor SB 617, but in the meantime, for a copy of the amended bill, click here.  Stay tuned.