An End To Apportionment Battles?

By: Mark Webb

When Governor Gavin Newsom vetoed Senate Bill 788 (Bradford) on September 28, it would be easy – too easy – to say he was simply following in the footsteps of his predecessors. For over a dozen years and now three Governors, efforts to prohibit apportionment based on “impermissible factors” have failed both in the Legislature and in the courts. Apportionment – at least to those workers to whom it applies – remains much as it was when first changed in Senate Bill 899 (Poochigian) in 2004.

The issue has evolved over the past decade. Advocates for SB 788 – at least as it existed prior to its amendments in the Assembly Insurance Committee – remain singularly fixated on further limiting the scope of apportionment. In so doing, they are also by necessity looking to increase permanent disability awards. While this debate was going on with multiple authors and multiple legislative sessions, however, the courts had what now appears to be a profound impact on this debate. In the case of Page v. Parisotto (2016) a complaint was filed in the Los Angeles County Superior Court alleging, among other things, that “no portion of the system of medical evaluator training, certification, or continuing education system established by Defendants addresses or is designed to remediate gender discrimination.”

The case settled. As part of that settlement, the Division of Workers’ Compensation (DWC) agreed to a number of things – including developing an anti-bias training program for qualified medical evaluators (QMEs).  This agreement is now manifest in proposed regulations of the DWC. These are the same regulations Governor Newsom cited in his veto message.

Specifically, the Governor said to the Legislature, “Ongoing efforts by the Division of Workers’ Compensation to implement mandatory continuing education of medical-legal evaluators related to current anti-bias laws and apportionment training is better suited to achieve the intent of this bill.”

The ramifications of this comment should be well considered before thinking about what is going to happen in the Legislature in 2022. First, the Governor has made it clear that this issue is off the table in terms of legislative activity next year. Second, he intends to solve this perennial problem through eliminating bias from the evaluation process, not empowering challenges to apportionment through costly ad hoc litigation.

But this is only the first step in a longer journey. In 2019, Governor Brown signed Assembly Bill 241 (Kamlager-Dove), requiring all continuing education courses for physician and surgeons, registered nurses, and physician assistants to contain curriculum that includes specified instruction in the understanding of implicit bias in medical treatment. As noted by the Medical Board of California, “implicit bias” is defined as the attitudes or internalized stereotypes that affect our perceptions, actions, and decisions in an unconscious manner, exists, and often contributes to unequal treatment of people based on race, ethnicity, gender identity, sexual orientation, age, disability, and other characteristics.

This year, Governor Newsom signed Assembly Bill 1407 (Burke), requiring, among other things, hospitals to implement an evidence-based implicit bias program as part of new graduate training programs that hire and train new nursing program graduates.

What does this mean for the workers’ compensation system?

Plenty. That is, plenty if the community prioritizes anti-implicit bias training in medical provider networks (MPNs). And plenty if Big Data purveyors admit that their data is perhaps compromised by bias. The veto of SB 788 is more significant than the training of QMEs. It could portend a better, more accurate, and more equitable system starting with diagnosis of injury and ending with a PD rating. Whether that is the case is up to the DWC, in part, but it is also up to all who have a touch on every single claim in the system.


Note: The opinions expressed herein may or may not be those of Workers’ Comp Executive. Mark Webb is a former Arizona insurance regulator, insurance company chief compliance officer, and is an expert in corporate governance, risk and compliance. He is the owner of Prop 23 Advisors.