BILL NUMBER: AB 305	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 30, 2015
	AMENDED IN ASSEMBLY  MARCH 26, 2015

INTRODUCED BY   Assembly Member Gonzalez
   (Coauthors: Assembly Members Chiu and McCarty)

                        FEBRUARY 12, 2015

   An act to amend  Section   Sections 4660,
4660.1, and  4663 of the Labor Code, relating to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 305, as amended, Gonzalez. Workers' compensation: permanent
disability apportionment.
   Existing workers' compensation law generally requires employers to
secure payment of workers' compensation, including medical
treatment, for injuries incurred by their employees that arise out
of, or in the course of, employment. An employer is liable only for
the percentage of the permanent disability directly caused by the
injury arising out of, and occurring in the course of, employment.
   Existing law requires apportionment of permanent disability to be
based on causation, and a physician who prepares a report addressing
the issue of permanent disability due to a claimed industrial injury
is required to address the issue of causation of the permanent
disability. The physician is required to make an apportionment
determination by finding what approximate percentage of the permanent
disability was caused by the direct result of 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, including prior
industrial injuries.
   This bill would prohibit apportionment of permanent disability, in
cases of physical injury, from being based on pregnancy, 
breast cancer,  menopause, or  osteoporosis.
  osteop   orosis if the condition is
contemporaneous with the claimed physical injury.  The bill
would also prohibit apportionment of permanent disability, in cases
of psychiatric injury, from being based on psychiatric disability or
impairment caused by sexual harassment, pregnancy,  breast
cancer,  menopause, or  osteoporosis.  
osteoporosis if the condition is contemporaneous with the claimed
injury. The bill would also provide, notwithstanding any other law,
that the impairment ratings for breast cancer and the aftereffects of
the disease, known as sequelae, shall in no event be less than
comparable ratings for prostate cancer and its sequelae. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 4660 of the   Labor
Code   is amended to read: 
   4660.  This section shall only apply to injuries occurring before
January 1, 2013.
   (a) In determining the percentages of permanent disability,
account shall be taken of the nature of the physical injury or
disfigurement, the occupation of the injured employee, and his or her
age at the time of the injury, consideration being given to an
employee's diminished future earning capacity.
   (b) (1) For purposes of this section, the "nature of the physical
injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding
percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment
(5th Edition).
   (2) For purposes of this section, an employee's diminished future
earning capacity shall be a numeric formula based on empirical data
and findings that aggregate the average percentage of long-term loss
of income resulting from each type of injury for similarly situated
employees. The administrative director shall formulate the adjusted
rating schedule based on empirical data and findings from the
Evaluation of California's Permanent Disability Rating Schedule,
Interim Report (December 2003), prepared by the RAND Institute for
Civil Justice, and upon data from additional empirical studies.
   (c) The administrative director shall amend the schedule for the
determination of the percentage of permanent disability in accordance
with this section at least once every five years. This schedule
shall be available for public inspection and, without formal
introduction in evidence, shall be prima facie evidence of the
percentage of permanent disability to be attributed to each injury
covered by the schedule.
   (d) The schedule shall promote consistency, uniformity, and
objectivity. The schedule and any amendment thereto or revision
thereof shall apply prospectively and shall apply to and govern only
those permanent disabilities that result from compensable injuries
received or occurring on and after the effective date of the adoption
of the schedule, amendment or revision, as the fact may be. For
compensable claims arising before January 1, 2005, the schedule as
revised pursuant to changes made in legislation enacted during the
2003-04 Regular and Extraordinary Sessions shall apply to the
determination of permanent disabilities when there has been either no
comprehensive medical-legal report or no report by a treating
physician indicating the existence of permanent disability, or when
the employer is not required to provide the notice required by
Section 4061 to the injured worker. 
   (e) On or before January 1, 2005, the administrative director
shall adopt regulations to implement the changes made to this section
by the act that added this subdivision.  
   (e) Notwithstanding any other law, the impairment ratings for
breast cancer and its sequelae shall in no event be less than
comparable ratings for prostate cancer and its sequelae. 
   SEC. 2.    Section 4660.1 of the   Labor
Code   is amended to read: 
   4660.1.  This section shall apply to injuries occurring on or
after January 1, 2013.
   (a) In determining the percentages of permanent partial or
permanent total disability, account shall be taken of the nature of
the physical injury or disfigurement, the occupation of the injured
employee, and his or her age at the time of injury.
   (b) For purposes of this section, the "nature of the physical
injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding
percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment
(5th Edition) with the employee's whole person impairment, as
provided in the Guides, multiplied by an adjustment factor of 1.4.
   (c) (1) Except as provided in paragraph (2), there shall be no
increases in impairment ratings for sleep dysfunction, sexual
dysfunction, or psychiatric disorder, or any combination thereof,
arising out of a compensable physical injury. Nothing in this section
shall limit the ability of an injured employee to obtain treatment
for sleep dysfunction, sexual dysfunction, or psychiatric disorder,
if any, that are a consequence of an industrial injury.
   (2) An increased impairment rating for psychiatric disorder shall
not be subject to paragraph (1) if the compensable psychiatric injury
resulted from either of the following:
   (A) Being a victim of a violent act or direct exposure to a
significant violent act within the meaning of Section 3208.3.
   (B) A catastrophic injury, including, but not limited to, loss of
a limb, paralysis, severe burn, or severe head injury. 
   (3) Notwithstanding any other law, the impairment ratings for
breast cancer and its sequelae shall in no event be less than
comparable ratings for prostate cancer and its sequelae. 
   (d) The administrative director may formulate a schedule of age
and occupational modifiers and may amend the schedule for the
determination of the age and occupational modifiers in accordance
with this section. The Schedule for Rating Permanent Disabilities
pursuant to the American Medical Association (AMA) Guides to the
Evaluation of Permanent Impairment (5th Edition) and the schedule of
age and occupational modifiers shall be available for public
inspection and, without formal introduction in evidence, shall be
prima facie evidence of the percentage of permanent disability to be
attributed to each injury covered by the schedule. Until the schedule
of age and occupational modifiers is amended, for injuries occurring
on or after January 1, 2013, permanent disabilities shall be rated
using the age and occupational modifiers in the permanent disability
rating schedule adopted as of January 1, 2005.
   (e) The schedule of age and occupational modifiers shall promote
consistency, uniformity, and objectivity.
   (f) The schedule of age and occupational modifiers and any
amendment thereto or revision thereof shall apply prospectively and
shall apply to and govern only those permanent disabilities that
result from compensable injuries received or occurring on and after
the effective date of the adoption of the schedule, amendment, or
revision, as the case may be.
   (g) Nothing in this section shall preclude a finding of permanent
total disability in accordance with Section 4662.
   (h) In enacting the act adding this section, it is not the intent
of the Legislature to overrule the holding in Milpitas Unified School
District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187
Cal.App.4th 808.
   (i) The Commission on Health and Safety and Workers' Compensation
shall conduct a study to compare average loss of earnings for
employees who sustained work-related injuries with permanent
disability ratings under the schedule, and shall report the results
of the study to the appropriate policy and fiscal committees of the
Legislature no later than January 1, 2016.
   SECTION 1.   SEC. 3.   Section 4663 of
the Labor Code is amended to read:
   4663.  (a) Apportionment of permanent disability shall be based on
causation.
   (b) Any physician who prepares a report addressing the issue of
permanent disability due to a claimed industrial injury shall in that
report address the issue of causation of the permanent disability.
   (c) (1) In order for a physician's report to be considered
complete on the issue of permanent disability, the report must
include an apportionment determination. 
   (A) 
    (2)     (A)  A physician shall make an
apportionment determination by finding what approximate percentage
of the permanent disability was caused by the direct result of 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,
including prior industrial injuries.
   (B) Apportionment in cases of physical injury shall not be based
on any of the following  conditions:  
conditions if those conditions are contemporaneous with the claimed
physical injury: 
   (i) Pregnancy. 
   (ii) Breast cancer.  
   (iii) 
    (ii   )    Menopause. 
   (iv) 
    (iii)  Osteoporosis.
   (C) Apportionment in cases of psychiatric injury 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  .
   (3)  If the physician is unable to include an apportionment
determination in his or her report, the physician shall state the
specific reasons why the physician could not make a determination of
the effect of a prior condition on the permanent disability arising
from the injury. The physician shall then consult with other
physicians or refer the employee to another physician from whom the
employee is authorized to seek treatment or evaluation in accordance
with this division in order to make the final determination.
   (d) An employee who claims an industrial injury shall, upon
request, disclose all previous permanent disabilities or physical
impairments.
   (e) Subdivisions (a), (b), and (c) shall not apply to injuries or
illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3,
3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10,
3212.11, 3212.12, 3213, and 3213.2.