BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 305|
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THIRD READING
Bill No: AB 305
Author: Gonzalez (D), et al.
Amended: 6/30/15 in Senate
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/24/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 59-18, 5/11/15 - See last page for vote
SUBJECT: Workers compensation: permanent disability
apportionment.Workers compensation: permanent
disability apportionment
SOURCE: California Applicants Attorneys Association
California Teamsters Public Affairs Council
DIGEST: This bill prohibits apportionment if pregnancy,
menopause, or menopause-caused osteoporosis is contemporaneous
with the injured worker's claimed injury. This bill also
requires that breast cancer not be less than the comparable
impairment rating for prostate cancer.
ANALYSIS:
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Existing law:
1)Establishes a workers' compensation system that provides
benefits to an employee who suffers from an injury or illness
that arises out of and in the course of employment,
irrespective of fault. This system requires all employers to
secure payment of benefits by either securing the consent of
the Department of Industrial Relations to self-insure or by
securing insurance against liability from an insurance company
duly authorized by the state.
2)Requires that, if an occupational injury results in a
permanent disability, the percentage of disability to total
disability shall be determined, and the disability payment
computed on the basis of the percentage of disability to total
disability. (Labor Code §4658)
3)Requires that, when doctors are determining the nature and
severity of an occupational injury, the American Medical
Association (AMA) Guides to the Evaluation of Permanent
Impairment (5th Edition) must be used to measure physical
impairment and determine an injured worker's whole person
impairment (WPI). (Labor Code §4660.1)
4)Creates the Permanent Disability Ratings Schedule (PDRS),
which increases the WPI by 40% and adjusts for occupation and
age to calculate a percentage of permanent disability (PD),
also known as a PD rating. (Labor Code §4660.1)
5)Requires that any physician who prepares a report addressing
the issue of PD include an apportionment determination, where
the physician determines what approximate percentage of the PD
was caused by other factors, including prior industrial
injuries. (Labor Code §4663)
This bill:
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1)Requires that WPI ratings for breast cancer and its sequelae
shall in no event be less than comparable WPI ratings for
prostate cancer and its sequelae.
2)Prohibits apportionment in cases of physical injury based on
any of the following conditions if those conditions are
contemporaneous with the claimed physical injury:
a) Pregnancy;
b) Menopause; and
c) Osteoporosis casually related to menopause.
1)Prohibit apportionment in cases of psychiatric injury caused
by sexual harassment or any of the conditions listed above if
the conditions are contemporaneous with the psychiatric
injury.
Comments:
1)A Brief Word on the AMA Guides: The AMA Guides were first
published in 1971 to provide "a standardized, objective
approach to evaluating medical impairments". The Guides define
"impairment" as a loss, loss of use, or derangement of any
body part, organ system, or organ function. Excluding the
introductory chapters, each chapter of the AMA Guides deals
with a specific area of the body or a specific type of
permanent impairment and discusses how to measure impairment
in a specific individual. This impairment measurement is a
percentage known as the whole person impairment (WPI), with a
higher WPI percentage signifying a higher level of impairment.
WPI serves as the foundational calculation for the purposes of
calculating a Permanent Disability (PD) rating. In bringing
the AMA Guides into the workers' compensation system in 2004,
the goal was to make the measurement of impairment, and by
extension PD ratings, more objective and uniform throughout
the state and based on the best available medical evidence.
Further, as a part of the 2012 reform, the Legislature
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codified case law that allows doctors to "rate by analogy" or
to use other chapters of the AMA Guides if those chapters
better explain the nature of the impairment (see Milpitas
Unified School District v. Workers' Comp. Appeals Bd. (Guzman)
(2010) 187 Cal.App.4th 808).
However, some proponents of the bill have argued that the AMA
Guides are not objective, specifically in the area of
gender-specific injuries. Specifically, proponents point to
the fact that the AMA Guides rate the removal of female
breasts at a WPI of 0%, while the removal of a prostate would
rate a 16%-20% WPI, arguing that such a rating shows bias
against women. This line of argument, however, has some
difficulties.
First, the male prostate is not a strong equivalent to female
breasts. The prostate is an exocrine gland that secretes
fluid, assisting the mobility of sperm after ejaculation. As
will be discussed in more detail below, removing the prostate
can lead to both incontinence and impotence. The closest
female equivalent, or homologue, to the prostate is the
skene's gland, which is located on the surface of the vulva.
Alternatively, one could also look at urthereal disease, which
would lead to incontinence.
When we look at how the AMA Guides rate the female equivalent
injuries, we see comparable WPI ratings. For example, vulval
disease where sexual intercourse is not possible would be
26%-35% WPI. Additionally, urthereal disease which leads to
stress incontinence would be a 25% WPI at a minimum. In short,
when looking at comparable injuries, both men and women appear
to receive comparable ratings through the AMA Guides.
Second, as was noted above, a higher WPI indicates a higher
level of impairment, and the removal of a prostate is only
rated as a 16%-20% WPI if the prostate removal led to sexual
dysfunction or urinary incontinence. According to the American
Cancer Society, 25% to 75% of men who have their prostate
removed will be impotent, depending on the age and health of
the men.
The American Cancer Society does not note similar challenges
after recovering from a mastectomy, which is the surgical
removal of the mammary glands. If a mastectomy resulted in
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comparable impairment, a doctor would be able to provide a WPI
rating comparable to the removal of the prostate through SB
863 and Guzman. The American Cancer Society does note that 20%
to 30% of women develop neuropathic pain near the site of the
surgery, though most women report that these symptoms are not
severe. If they were severe pain, it is likely that they would
be ratable through the AMA Guides chapter on Pain.
As was noted above, AB 305 makes breast cancer sequelae (or
consequences of injury or disease) equally ratable as prostate
cancer sequelae. The likely consequence of this is that it
would require that mastectomies are rated the same as prostate
removal.
2)A Brief Word on Apportionment: Under existing law, every time
a doctor prepares a report on if a claimed workplace injury is
permanently disabling, the physician must determine causation
AND what percentage of the injury is due to non-occupational
issues, including prior workplace injuries. An injured
worker's PD award is then adjusted down by this percentage.
Only a physician can determine if apportionment is appropriate
and to what degree.
This makes apportionment a uniquely provocative policy. On one
hand, it would be difficult to defend requiring an employer to
provide PD awards for an injury that is unrelated to work or
occurred at another place of employment. This is why language
limiting PD awards to only cover the consequences of a
workplace injury has been in law since 1917. While the current
apportionment statute dates back to 2004, the idea behind it
is nearly a century old.
On the other hand, determining what percentage of an injury is
or is not occupational is highly dependent on the judgment of
the physician. WCAB case law provides that an apportionment
finding is only valid if the physician's medical opinion:
1) Framed in terms of reasonable medical probability;
2) Not speculative;
3) Based on pertinent facts and on an adequate examination;
4) Sets forth the reasoning in support of its conclusion;
and
5) Explains how and why the apportionable factor is
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responsible for the disability.
(See Escobedo v. Marshalls, (2005) 70 Cal. Comp. Cases 604)
Despite this case law, sometimes physicians fail to meet these
requirements when making an apportionment determination.
For example, in Rice v. City of Jackson, ADJ8701916 (2015), an
injured worker's PD award was apportioned by 49% due to
"family history", or the injured worker's father's history of
hip and back issues. The physician cited several journal
articles, but did not evaluate the injured worker's family or
connect the "how and why" such family history led to the
injured worker's level of permanent disability. The WCAB ruled
that apportioning on the basis of genetic predisposition was
inappropriate, noted that apportioning on the basis of
immutable factors is impermissible, and returned the case to
the local board for a new unapportioned award of permanent
disability.
Proponents have brought forward several examples of
apportionment that, like Rice, appear to fall into the arena
of physician failure. Each example is troubling. However, they
are a small sample; thousands of apportionment decisions are
issued each year and have been for over a decade.
One final note on apportionment: the apportioning of a PD
award has no impact on the ability of an injured worker to
receive medical care. Even in the event that a PD award is
apportioned to 0%, the worker has a right to medical care if
the injury arises or occurs in the course of employment (See
Employers Mutual Liability Ins. Co. of Wisconsin v. Industrial
Acc. Com. (Gideon) (1953) 41 Cal.2d 676 and Reyes v. Hart
Plastering (2005) 70 Cal.Comp.Cases 223).
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
According to the Senate Appropriations Committee analysis:
1)The Department of Industrial Relations (DIR) would incur costs
(special funds) of $4.25 million in the first year, and $4
million annually thereafter to implement the provisions of the
bill.
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2)As a direct employer, the State would incur increased
permanent disability costs due to breast cancer. The magnitude
is unknown, but potentially significant.
3)AB 305 also would result in increased litigation costs to the
State as a direct employer. The magnitude is unknown, but
potentially significant.
SUPPORT: (Verified8/31/15)
California Applicant's Attorneys (co-source)
California Teamsters Public Affairs Council (co-source)
American Association of University Women - AAUW of CA
American Federation of State, County and Municipal Employees,
AFL-CIO
California Association of Highway Patrolmen
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Nurses Association
California Professional Firefighters
California School Employees Association, AFL-CIO
California State Lodge, Fraternal Order of Police
Engineers & Scientists of California
International Longshore & Warehouse Union
LA County Professional Peace Officers Association
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Motor Carrier Supervisors
Organization of SMUD Employees
Peace Officers Research Association of California
Professional & Technical Engineers
Sacramento County Deputy Sheriffs' Association
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Santa Ana Police Officers Association
The United Nurses Association of California
Union of Health Care Professionals
United Food & Commercial Workers
UNITE-HERE, AFL-CIO
Utility Workers Union of America
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9to5 of California
OPPOSITION: (Verified6/25/15)
Acclamation Insurance Management Services
Allied Managed Care
American Insurance Association
Association of California Insurance Companies
Association of California Water Agencies
California Association of Joint Powers Authorities
California Chamber of Commerce
California Coalition on Workers' Compensation
California Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Retailers Association
California State Association of Counties
County of Los Angeles
CSAC Excess Insurance Authority
Independent Insurance Agents and Brokers of California
League of California Cities
Marin County Board of Supervisors
Torrance Area Chamber of Commerce
Western Occupational & Environmental Medical Association
ARGUMENTS IN SUPPORT: The sponsor of this bill, the
California Applicants' Attorneys Association (CAAA), argues that
AB 305 will eliminate gender bias from apportionment when
determining permanent disability ratings. CAAA argues that
factors such as pregnancy and menopause are used as factors to
lower permanent disability. CAAA also cites several cases where
apportionment is purported to have occurred due to risk factors
and immutable characteristics, rather than proven conditions.
CAAA also notes that AB 305 will make breast cancer eligible for
the same disability rating as prostate cancer. Finally, CAAA
argues that the workers' compensation system treats being a
woman as a pre-existing condition, and that AB 305 will ensure
that women receive the level of permanent disability they
deserve.
AB 305
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ARGUMENTS IN OPPOSITION: Opponents argue that AB 305 is an
attempt to undermine an employer's use of apportionment when
determining liability for permanent disability awards.
Specifically, opponents note that apportionment is more than a
decade old and ensures that employers do not need to pay for
non-industrial injuries. Further, opponents point to case law
and statute which protects injured workers from abusive
apportionment, including apportionment on the basis of gender.
Opponents further argue that AB 305 will increase litigation,
raise indemnity costs on employers, and increase systemic
instability and subjectivity.
ASSEMBLY FLOOR: 59-18, 5/11/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown,
Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,
Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,
Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey,
Levine, Linder, Lopez, Low, Maienschein, McCarty, Medina,
Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark
Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood
NOES: Travis Allen, Bigelow, Brough, Chávez, Dahle, Beth
Gaines, Grove, Harper, Jones, Kim, Mathis, Mayes, Melendez,
Obernolte, Olsen, Patterson, Wagner, Wilk
NO VOTE RECORDED: Chang, Gallagher, Atkins
Prepared by:Gideon L. Baum / L. & I.R. / (916) 651-1556
8/31/15 18:29:02
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