On Wednesday, June 3, 2016, the California Assembly passed AB 1643 with a majority vote. The act, which was introduced by Assemblywoman Lorena Gonzalez (D- San Diego), seeks to amend Labor Code section 4663 and to add section 4660.2, calling for the prohibition of apportionment to certain physical and psychological injuries that many lawmakers have argued perpetuates gender discrimination in the workplace. Although the bill still must pass a vote in the upper house before being presented to Governor Brown for approval, many lawmakers have already noted the impact the law would have on working towards eliminating gender bias in workers’ compensation cases.
Under current California law, workers’ compensation claims cannot be expressly denied on the basis of an injured employee’s gender; however, supporters of AB 1643 contend that the current laws do not protect women from discrimination that may occur in the apportionment phase of a workers’ compensation claim.
Labor Code § 4663 governs apportionment of permanent disability based on causation, which takes into account an injured worker’s pre-existing conditions. Labor Code § 4663 provides that, “a physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of the injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury.”
AB 1643 seeks to amend the current reading of Labor Code § 4663 and would impact physical injuries occurring on or after January 1, 2017. The current reading of the bill would prohibit apportionment of permanent disability based on menopause, osteoporosis, carpal tunnel and pregnancy, which proponents of the bill argue are more commonly medical incidences affecting female employees. Under the proposed bill, apportionment of permanent disability in the case of psychiatric injury occurring on or after January 1, 2017 would be prohibited from being based on psychiatric disability or impairment caused by any of these conditions as well. Essentially, the bill would prohibit doctors from taking any impairments caused by these conditions into consideration when determining apportionment in a workers’ compensation claim.
AB 1643 also seeks to add § 4660.2 to the Labor Code, which would require that the disability rating for breast cancer and its sequela be comparable to the ratings for prostate cancer and its sequela, a change that proponents of the bill contend will help eliminate gender bias in workers’ compensation claims.
The goal behind AB 1643 may sound familiar to some, as Assemblywoman Gonzalez proposed a similar bill last year, AB 305. Governor Brown vetoed AB 305, claiming that the legislation did not correctly understand the guidelines used to rate breast cancer injuries. In his Veto Message on the issue, Governor Brown acknowledged that,
“[t]he workers’ compensation system must be free of gender-bias. No group should receive less in benefits because of an immutable characteristic.” However, in support of his decision not to sign AB 305, the Governor contended that, “this bill is based on a misunderstanding of the American Medical Association’s evidence-based standard, which is the foundation of the permanent disability ratings, and replaces it with an ill-defined and unscientific standard.”
In response to Governor Brown’s veto of AB 305, Assemblywoman Gonzalez addressed the purpose of the proposed legislation as a “a simple principle of fairness that being a woman should not be considered a pre-existing condition, least of all by government.” She went on to state that “this is the flawed standard working women face under the current workers’ compensation system … AB 1643 incorporates concerns raised last year by the Governor to provide a stronger bill to address the gender bias in workers’ compensation and get California on track to true fairness.”
The next hearing on AB 1643 will occur in July 2016. If the bill successfully passes the second house, it will again go to Governor Brown’s desk for approval.