Mark Webb
Pasadena, California
Of all the many contentious issues legislated and litigated since the passage of Senate Bill 899 (Poochigian) in 2004, perhaps none has been more enduringly difficult to resolve than the issue of apportionment to "impermissible factors."
The genesis of this debate is the unpublished opinion in Vaira v. Workers' Compensation Appeals Board (2007) C054948. In Vaira, the injured worker argued that "...any reduction in disability benefits based on her age and osteoporosis amounts to both age and gender discrimination." The case ultimately was remanded to the Workers' Compensation Appeals Board (WCAB) because it was unclear whether the qualified medical evaluator ".apportioned disability to age per se rather than to one or more physical or mental conditions associated with age that contribute to her disability."
Vaira is important for two reasons. While the opinion was unpublished, the court agreed with the injured worker that Government Code section 11135 applied to workers' compensation. Subdivision (a) of this section states:
No person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.
The appellate courts have never addressed in a published opinion whether workers' compensation is a "program or activity" and part of state government. City of Jackson v. Workers' Comp. Appeals Bd. (Rice) (2017) 11 Cal.App.5th 109 raised the issue of applicability of Government Code section 11135. The court bypassed the issue by stating:
The California Applicants' Attorneys Association filed an amicus curiae briefarguing apportionment to genetics is unlawful invidious discrimination pursuant to Government Code section 11135, which prohibits government programs or activities from discrimination on the basis of, inter alia, physical disability or genetic information. We decline to address this argument because it was not raised by petitioner.
Id. at p. 117, fn. 3.
The potential implications of applying Government Code section 11135 to the workers' compensation system, and specifically to the law of apportionment, are considerable.
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Vaira also brought the issue of apportionment to impermissible factors to the attention of the California Legislature. It has remained there ever since.
In 2008, Senator Carole Migden authored Senate Bill 1115. That bill limited apportionment under Labor Code section 4663 by stating:
(r)ace, religious creed, color, national origin, age, gender, marital status, sex, or genetic predisposition shall not be considered a cause or other factor of disability with regard to any determination made under this section.
The employer community opposed the bill. The Assembly Floor analysis of SB 1115 noted:
The opposition initially took an "oppose unless amended" position, hoping to craft language that defined the distinction between inappropriate use of risk factors and proper use of preexisting medical conditions. However, the employer community was unable to reach any agreement on amendments due to the consistent concerns expressed by their various counsel that changes in the apportionment statute would result in unintended consequences.
The Legislature passed the bill and sent it to Governor Arnold Schwarzenegger, who vetoed it. In his veto message, the...
