Amended in Assembly April 30, 2015

Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 305

Introduced by Assembly Member Gonzalez

(Coauthors: Assembly Members Chiu and McCarty)

February 12, 2015

An act to amend begin delete Section end delete begin insert Sections 4660, 4660.1, and end insert 4663 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

AB 305, as amended, Gonzalez. 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 the 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 what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment, and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

This bill would prohibit apportionment of permanent disability, in cases of physical injury, from being based on pregnancy, begin delete breast cancer, end delete menopause, or begin delete osteoporosis. end delete begin insert osteop end insert begin insert orosis if the condition is contemporaneous with the claimed physical injury. end insert The bill would also prohibit apportionment of permanent disability, in cases of psychiatric injury, from being based on psychiatric disability or impairment caused by sexual harassment, pregnancy, begin delete breast cancer, end delete menopause, or begin delete osteoporosis. end delete begin insert osteoporosis if the condition is contemporaneous with the claimed injury. The bill would also provide, notwithstanding any other law, that the impairment ratings for breast cancer and the aftereffects of the disease, known as sequelae, shall in no event be less than comparable ratings for prostate cancer and its sequelae. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 4660 of the end insert begin insert Labor Code end insert begin insert is amended to
read: end insert

4660.  

This section shall only apply to injuries occurring before
January 1, 2013.

(a) In determining the percentages of permanent 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 the injury, consideration being given to an
employee’s diminished future earning capacity.

(b) (1) 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).

(2) For purposes of this section, an employee’s diminished future
earning capacity shall be a numeric formula based on empirical
data and findings that aggregate the average percentage of
long-term loss of income resulting from each type of injury for
similarly situated employees. The administrative director shall
formulate the adjusted rating schedule based on empirical data and
findings from the Evaluation of California’s Permanent Disability
Rating Schedule, Interim Report (December 2003), prepared by
the RAND Institute for Civil Justice, and upon data from additional
empirical studies.

(c) The administrative director shall amend the schedule for the
determination of the percentage of permanent disability in
accordance with this section at least once every five years. This
schedule 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.

(d) The schedule shall promote consistency, uniformity, and
objectivity. The schedule 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 fact may
be. For compensable claims arising before January 1, 2005, the
schedule as revised pursuant to changes made in legislation enacted
during the 2003-04 Regular and Extraordinary Sessions shall apply
to the determination of permanent disabilities when there has been
either no comprehensive medical-legal report or no report by a
treating physician indicating the existence of permanent disability,
or when the employer is not required to provide the notice required
by Section 4061 to the injured worker.

begin delete

(e) On or before January 1, 2005, the administrative director
shall adopt regulations to implement the changes made to this
section by the act that added this subdivision.

end delete begin insert

(e) Notwithstanding any other law, the impairment ratings for
breast cancer and its sequelae shall in no event be less than
comparable ratings for prostate cancer and its sequelae.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 4660.1 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

4660.1.  

This section shall apply 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. Nothing in this
section shall 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.

begin insert

(3) Notwithstanding any other law, the impairment ratings for
breast cancer and its sequelae shall in no event be less than
comparable ratings for prostate cancer and its sequelae.

end insert

(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) Nothing in this section shall preclude a finding of permanent
total disability in accordance with Section 4662.

(h) In enacting the act adding this section, 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.

begin delete SECTION 1. end delete
begin insert SEC. 3. end insert   

Section 4663 of the Labor Code is amended to read:

4663.  

(a) Apportionment of permanent disability shall be based
on causation.

(b) Any physician who prepares a report addressing the issue
of permanent disability due to a claimed industrial injury shall in
that report address the issue of causation of the permanent
disability.

(c) (1) In order for a physician’s report to be considered
complete on the issue of permanent disability, the report must
include an apportionment determination.

begin delete

(A)

end delete

begin insert (2) end insert begin insert   end insert begin insert (A) end insert  A physician shall make an apportionment determination
by finding what approximate percentage of the permanent disability
was caused by the direct result of injury arising out of and
occurring in the course of employment and what approximate
percentage of the permanent disability was caused by other factors
both before and subsequent to the industrial injury, including prior
industrial injuries.

(B) Apportionment in cases of physical injury shall not be based
on any of the following begin delete conditions: end delete begin insert conditions if those conditions
are contemporaneous with the claimed physical injury: end insert

(i) Pregnancy.

begin delete

(ii) Breast cancer.

end delete begin delete

(iii) 

end delete

begin insert (ii end insert begin insert ) end insert begin insert   end insert Menopause.

begin delete

(iv)

end delete

begin insert (iii) end insert  Osteoporosis.

(C) Apportionment in cases of psychiatric injury shall not be
based on psychiatric disability or impairment caused by sexual
harassment begin insert that is contemporaneous with the claimed psychiatric
injury, end insert or caused by any of the conditions listed in subparagraph
(B) begin insert that are contemporaneous with the claimed psychiatric injury end insert .

(3)  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 a 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) shall 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.