BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session AB 1643 (Gonzalez) - Workers' compensation: permanent disability apportionment ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 16, 2016 |Policy Vote: L. & I.R. 4 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: August 1, 2016 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- 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 AB 1643 (Gonzalez) Page 1 of ? 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 AB 1643 (Gonzalez) Page 2 of ? 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 AB 1643 (Gonzalez) Page 3 of ? overstated. -- END --