BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Richard Alarcon, Chair
Date of Hearing: April 23, 2003 2003-2004 Regular
Session
Consultant: Liberty Reiter Sanchez Fiscal:Yes
Urgency:No
Bill No: SB 714
Author: Battin
Amended: April 21, 2003
Subject:
Workers' compensation: apportionment
Purpose:
To require apportionment determinations by the Workers'
Compensation Appeals Board (WCAB) to be based on specified
medical documentation and to create a statutory presumption
regarding apportionment where an employee has a prior
permanent disability award.
Analysis:
Existing law, provides that employers are generally liable
for workplace illnesses and injuries sustained by their
employees arising out of and in the course of their
employment, under the workers' compensation system.
Provides that an employer's liability for an employee's
occupational injury, if the employee has sustained a
previous injury, must be apportioned in the amount
attributable only to the new injury.
Provides that when a compensable injury aggravates a prior
existing disease, that compensation is only allowed for
that portion of the disability due to the aggravation which
is reasonably attributed to the injury.
Provides that where an employee has a compensable injury
and then subsequently sustains a non-compensable injury,
the employee shall not receive permanent disability
indemnity benefits if the subsequent injury was the sole
cause of the permanent disability.
Provides, generally, that parties must meet evidentiary
proof by a preponderance of evidence.
This Bill , requires the employer to prove by (1) a
preponderance of the evidence, and (2) reasonable medical
probability, that absent the employees occupational injury
and as a consequence of a preexisting illness or injury,
the injured worker had lost some capacity to perform the
activity which is also affected by the injury.
Additionally, prohibits the WCAB, when denying
apportionment in determining permanent disability, from
relying on medical reports which fail to (1) fully address
the issue of apportionment; or, (2) set forth the basis of
the medical opinion. Also prohibits the WCAB , when
denying apportionment, from relying on medical reports
which fail to (1) apportion a previous injury or illness
that has been the subject of a prior claim for damages; or,
(2) provide a discussion of the medical processes by which
a previously asserted injury or illness resolved without
affecting bodily function.
Provides that if the injured worker has received a prior
award of permanent disability, there is a conclusive
presumption that the prior permanent disability exists at
the time of the subsequent occupational injury.
Comments:
(1)Apportionment:
Apportionment is the process of attributing a percentage
of an injured worker's disability to a previous injury,
award or non-work related condition, and assigning the
remaining percentage of disability to the injury at
question.
Some occupational injuries, such as limb loss, are
Hearing Date: April 23, 2003 SB
714
Consultant: Liberty Reiter Sanchez
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Senate Committee on Labor and Industrial Relations
clearly not candidates for apportionment arguments.
Other cases, such as soft tissue injuries to the lower
back, provide more opportunity for the parties to
disagree regarding whether the disability was purely the
result of the occupational injury, or whether other
factors contributed to it. Accordingly, there are
statutory and regulatory requirements in existing law,
which mandate apportionment considerations, such as
prior injuries and prior permanent disability awards.
(2)"Discussion of the medical processes by which a
previously asserted injury or illness
resolved without affecting bodily function":
The requirement in this bill limiting the evidence upon
which the WCAB can rely in making apportionment
determinations may substantially impact injured-workers'
permanent disability ratings. Specifically, it may be
difficult for a medical provider to include in his
report "a discussion of the medical processes by which a
previously asserted injury or illness resolved without
affecting bodily function." Particularly if the prior
injury or illness was not one which the medical provider
treated, or if there are language barriers between the
medical provider and injured worker.
(3)Prior permanent disability rating presumption:
Moreover, under existing law, if the injured worker had
a disabling injury in the past, but improved to the
point that his disability decreased before the second
injury, the applicant may completely or partially defeat
an apportionment claim by establishing that he has
"rehabilitated" himself.
An example of this is where the injured worker received
a 25 percent PD award because of a limitation from heavy
lifting, bending, and repeated stooping, ten years prior
to the new injury. At the time of the new injury, if the
injured worker has improved to the point where he is
Hearing Date: April 23, 2003 SB
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Senate Committee on Labor and Industrial Relations
only restricted from "very heavy lifting", his
pre-existing permanent disability rating, might really
be quantified at 10 percent. Accordingly, appropriate
apportionment would be 10 percent, based on his
condition at the time immediately prior to the
subsequent injury, rather than 25 percent in accordance
with the initial permanent disability. However, if this
bill became law, there would be a conclusive presumption
requiring 25 percent apportionment, regardless of the
injured worker's rehabilitation.
(4)Burden of proof:
The burden of proof requirement in sub-section (a) may
have an unintended consequence harmful to employers,
because it requires some loss of "capacity" from a
previous injury. This is not necessarily true of section
Labor Code Section 4663 apportionment, which may be
applicable in the case of a progressive condition, even
if it had not yet caused any impairment at the time of
the occupational injury.
(5) Proponents :
The California Chamber of Commerce, the sponsors of this
bill assert that this bill is one of the many steps
necessary to rein in employers skyrocketing workers'
compensation insurance premiums.
The California Manufacturers and Technology Association
argues that this bill is necessary because all too often
an employers request for apportionment is denied without
any medical justification. They note examples of
apportionment claims being denied due to incomplete
medical reports or inadequate medical review processes.
The California Space Authority supports the bill
contending that it will prevent employers from having to
provide benefits for injuries that were not suffered at
the employer's workplace.
Hearing Date: April 23, 2003 SB
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Consultant: Liberty Reiter Sanchez
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Senate Committee on Labor and Industrial Relations
(6) Opponents :
The California Society of Industrial Medicine and Surgery
opposes the bill because it would prohibit a judge from
considering any medical report that did not "fully
address the issue of apportionment," without defining
what "fully address" means. Current law allows the judge
to weigh the convincing force of a report and give it the
consideration it properly deserves. To do otherwise, as
this bill requires would create a purely subjective
protocol, which would not benefit injured workers or
employers.
The California Applicants' Attorneys Association argues
that this bill would eliminate legitimate claims for
repetitive stress injuries, toxic exposure and
occupational diseases such as asbestosis, especially in
older injured workers.
Support:
California Chamber of Commerce (Sponsor)
Agricultural Council of California -Support in Concept
Association of California Insurance Companies
Automotive Afterarket Services Inc.
Board of Directors of the Brawley Chamber of Commerce
CA Agricultural Aircraft Association -Support in Concept
CA Assoc. of Nurseries & Garden Centers -Support in Concept
CA Beer and Beverage Distributors -Support in Concept
CA Citrus Mutual -Support in Concept
Ca Cotton Ginners Association -Support in Concept
CA Farm Bureau Federation -Support in Concept
CA Fig Institute -Support in Concept
CA Grocers Association -Support in Concept
CA Lodging Industry Association -Support in Concept
CA Plant Health Association -Support in Concept
CA Restaurant Association -Support in Concept
CA State Association of Counties -Support in Concept
Ca Women for Agriculture -Support in Concept
Hearing Date: April 23, 2003 SB
714
Consultant: Liberty Reiter Sanchez
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Senate Committee on Labor and Industrial Relations
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Association of Sheet Metal and Air Conditioning
Contractors Natl Association
California Manufacturers and Technology Association
California Space Authority
California State Association of Counties (Support in
concept)
Chico Chamber of Commerce
Engineering and Utility Contractors Association
Golden State Builders Exchanges
Hobbs Trucking Company
Insurance Agents and Brokers Legislative Council
Irvine Chamber of Commerce
League of California Cities (support in concept)
League of California Cities -Support in Concept
Liberty Mutual Group
Los Angeles County Board of Supervisors
Milk Producers Council -Support in Concept
Nat'l Federation of Independent Business -Support in
Concept
Murrieta Chamber of Commerce
Orange County Business Council
Sacramento Metropolitan Chamber of Commerce
Tulare Chamber of Commerce
Ventura Chamber of Commerce
Western Growers Association -Support in Concept
Opposition:
California Applicants' Attorneys Association
California Society of Industrial Medicine and Surgery
California School Employees Association
California Teamsters Public Affairs Council
California Independent Public Employees Legislative Council
* * *
Hearing Date: April 23, 2003 SB
714
Consultant: Liberty Reiter Sanchez
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Senate Committee on Labor and Industrial Relations
Hearing Date: April 23, 2003 SB
714
Consultant: Liberty Reiter Sanchez
Page 7
Senate Committee on Labor and Industrial Relations