BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          AB 1643 (Gonzalez) - Workers' compensation:  permanent  
          disability apportionment
          
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          |Version: March 16, 2016         |Policy Vote: L. & I.R. 4 - 1    |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: August 1, 2016    |Consultant: Robert Ingenito     |
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          This bill meets the criteria for referral to the Suspense File.


          


          Bill  
          Summary: AB 1643 would (1) prohibit apportionment in cases of  
          physical injury based on pregnancy, menopause, osteoporosis, and  
          carpal tunnel syndrome, and (2) require that breast cancer not  
          be less than the comparable impairment rating for prostate  
          cancer.


          Fiscal  
          Impact:
                 The Department of Industrial Relations (DIR) indicates  
               that it would incur costs (special funds) of $6.4 million  
               in the first year, and $6 million annually thereafter to  
               implement the provisions of the bill. 

                 As a direct employer, the State would incur increased  
               permanent disability costs due to breast cancer. Breast  







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               cancer permanent disability awards largely impact public  
               sector employees such as policy and firefighters, due to  
               presumptions of compensability, whereas in other employment  
               sectors it is tougher to demonstrate breast cancer is job  
               related. The magnitude of these costs is unknown, but  
               likely significant.

                 The bill also would result in increased litigation costs  
               to the State as a direct employer. The magnitude is  
               unknown, but potentially significant.



          Background: Current law establishes a workers' compensation system that  
          provides benefits to an employee who suffers from an injury or  
          illness that occurs during the course of employment,  
          irrespective of fault.  This system requires all employers to  
          secure payment of benefits by either (1) securing the consent of  
          DIR to self-insure, or (2) securing insurance against liability  
          from an insurance company authorized by the State.
          Under current law, 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). 


          When physicians prepare a report regarding whether a claimed  
          workplace injury is permanently disabling, the physician must  
          determine both (1) causation, and (2) what percentage of the  
          injury is due to non-occupational issues, including prior  
          workplace injuries. An injured worker's permanent disability  
          (PD) award is then adjusted down by this percentage. Only a  
          physician can make the determination whether and to what extent  
          if apportionment is appropriate.


          Additionally, current law creates the Permanent Disability  
          Ratings Schedule (PDRS), which increases the WPI by 40 percent  
          and adjusts for occupation and age to calculate a percentage of  
          permanent disability, also known as a PD rating. AMA Guides rate  
          the removal of female breasts at a WPI of zero percent, while  
          the removal of a prostrate generally rates at 16 to 20 percent  








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          WPI. Thus, prostrate removal currently translates into a higher  
          PD rating than female breast removal.




          Proposed Law:  
          This bill would (1) require 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) prohibit  
          apportionment in cases of physical injury occurring on or after  
          January 1, 2017 based on the following conditions: pregnancy,  
          menopause, osteoporosis, and carpal tunnel syndrome, and (3)  
          prohibit apportionment in cases of psychiatric injury caused by  
          any of the conditions listed above.


          Related  
          Legislation: AB 305 (Gonzalez) of 2015 was very similar to this  
          bill. It was vetoed by the Governor.


          Staff  
          Comments: The Office of the Legislative Counsel has keyed this  
          bill "non-fiscal."  However, the purview of this Committee,  
          pursuant to Joint Rule 10.5, is to review and analyze bills that  
          would, among other things, result in a substantial expenditure  
          of state money. Thus, even though AB 1643 was keyed  
          "non-fiscal," the Committee requested the bill to examine the  
          extent to which it might potentially increase both workload and  
          state costs. AB 1643 has the potential to create significant  
          fiscal pressure on the state in the following ways: (1)  
          increased litigation, leading to higher Workers Compensation  
          Appeals Board (WCAB) utilization, (2) increased PD costs due to  
          breast cancer for the State of California as a direct employer  
          (particularly for peace officers), and (3) increased litigation  
          costs for the State of California as an employer.
          As noted previously, DIR estimates that the additional workload  
          resulting from the bill would lead to increased costs of $6.4  
          million in the first year, and $6 million annually thereafter.  
          However, to the extent that the number of women who receive an  
          apportionment determination is reduced in light of the bill's  
          prohibition of apportionment to certain factors such as carpal  
          tunnel syndrome and osteoporosis, the DIR estimate could be  








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          overstated. 




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