Senate Bill 788 (Bradford) is like legislation proposed for over a decade, beginning with Senate Bill 1115 (Migden) introduced in 2008. It amends Labor Code section 4663 to prohibit apportionment based upon impermissible immutable factors. In this case, those factors are race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics. This iteration also adds sweeping legislative intent language to, “…eliminate bias and discrimination in the workers’ compensation system.”
No discussion of this issue is complete without mentioning the California Court of Appeal decision in City of Jackson v. Workers’ Comp. Appeals Bd. (2017), 11 Cal. App. 5th 109, 216 Cal. Rptr. 3d 911. The case remains controversial to this day, with both labor and claims administrator advocates seemingly agreed that it is an aberration. Somehow, the Supreme Court did not think so. And neither did the Court of Appeal in the subsequent case of City of Petaluma v. Workers’ Comp. Appeals Bd. (2018), 29 Cal. App. 5th 1175, 241 Cal. Rptr. 3d 97. The Supreme Court denied review in this case as well.
The law on apportionment remains today as it did when changed in 2004. As stated in City of Jackson, “Again, we see no relevant distinction between apportionment for a preexisting disease that is congenital and degenerative, and apportionment for a preexisting degenerative disease caused by heredity or genetics.”
In 2018, the Legislature sent Senate Bill 899 (Pan) to Governor Brown. This was a consensus bill prohibiting apportionment based upon race, gender, and national origin. Notwithstanding no opposition to the bill, Governor Brown vetoed it, noting that it was unnecessary and would not change existing law already providing protection from the inappropriate application of the apportionment statutes.
By 2021 we have spent over a decade debating the appropriate scope of apportionment of permanent disability to other industrial or non-industrial disabling conditions. In the limited environment of trying to determine what portion of permanent disability was caused by the current workplace injury, finding language that would take bias out of apportionment has been elusive. Solutions to date would appear only to have generated more litigation.
While the stated intent of SB 788 is laudable, the actual bill language once again falls far short. The broader issue of bias in medical treatment and evaluation of permanent disability has not been a blip on the workers’ compensation radar screen but for the apparently yet unfulfilled training obligations contained in the settlement agreement in the Page v. Parisotto case in 2019. Not only does SB 788 not deal with these issues, but it should also be noted that many public safety workers whose injuries are presumed to be compensable are exempt from apportionment. How does this advance the issue of eliminating bias in the system?
Last year, Assembly Bill 241 (Kamlager-Dove) was signed by Governor Newsom. It provides, in part, that by January 1, 2022 all continuing education courses for a physician and surgeon must contain curriculum that includes specified instruction in the understanding of implicit bias in medical treatment. How this may be reflected in the practice of occupational medicine will have to be seen – but at the present time the issue of bias in treatment and evaluations in the workers’ compensation system is a discussion few now seem to want to have.
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.