MARK WEBB, ESQ.
EAGLE, IDAHO
At first glance, Governor Gavin Newsom's 2021 veto of Senate Bill 788 (Bradford) would appear to be just another episode in the long-running challenge to the law of apportionment based on what has been given the shorthand label of "impermissible factors." The history of this issue is complex.1 Most recently, the legislative debate has been framed as a response to City of Jackson v. Workers' Comp. Appeals Bd. (2017) 11 Cal.App.5th 109 and City of Petaluma v. Workers' Comp. Appeals Bd. (2018) 29 Cal. App.5th 1175. In the case of Senate Bill 899 (Pan), in 2018, and SB 788, employers and worker advocates actually agreed on the content of the bill; despite their efforts, the Governor vetoed these bills as well.
At the inception of this debate, in 2008, the proffered amendment to Labor Code section 4663 stated:
Race, 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.
Senate Bill 1115 (Migden).
By 2016, the debate had changed. Assembly Bill 305 (Gonzalez Fletcher) would have prohibited apportionment in Labor Code section 4663(c)(2):
(B) ...based on either of the following conditions if those conditions are contemporaneous with the claimed physical injury:
(i) Pregnancy.
(ii) Menopause.
(C) Apportionment in the case of a psychiatric injury occurring on or after January 1, 2016, shall not be based on psychiatric disability or impairment caused by sexual harassment that is contemporaneous with the claimed psychiatric injury, or caused by any of the conditions listed in subparagraph (B) that are contemporaneous with the claimed psychiatric injury.
One year later, in 2017, Assembly Bill 570 (Gonzalez Fletcher) proposed amending Labor Code section 4663 to state:
No percentage of an apportionment in the case of a physical injury occurring on or after January 1, 2018, shall be based on pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth.
In 2016, during the ongoing legislative effort, a group of representative plaintiffs filed Page et al. v. Acting Administrative Director of the Division of Workers' Compensation et al. (2016) BC625992 in Los Angeles Superior Court, claiming widespread gender discrimination in the administration of the workers' compensation system. As the plaintiffs noted in their complaint:
Reducing the compensation due to women workers on the basis of stereotypes about women's roles and capacities has no place in our State or in our constitutional system.
The case ultimately settled. The settlement included qualified medical evaluator (QME) training. Specifically, the training was to include:
...content addressing the importance of medical evaluators basing apportionment decisions on the medical evidence applicable to each individual applicant and not based on assumptions, stereotypes, or bias about an applicant's gender, race, or other protected characteristic.
The settlement did not end efforts in the Legislature to amend Labor Code section 4663. By 2018 the debate on apportionment had returned to its initial points of contention: the permissible scope of "other factors," as that term is used in Labor Code section 4663(c), and
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what a physician may take into account when making an apportionment decision.
In 2018, employer and worker advocates agreed to this language in SB 899 (Pan):
A physician shall make an apportionment determination by finding the approximate percentage of the permanent disability that was caused by the direct result of injury arising out of and occurring in the course of employment and the approximate percentage of the permanent disability that was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries, but excluding race, gender, and national origin.
By 2021, the following language...
