Workers’ Compensation and Civil Litigation Consultation & Defense
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Governor Gavin Newsom vetoed unopposed SB-788 - by Debra Tobias
2021-10-04
Governor Gavin Newsom vetoed unopposed SB-788 which prohibited apportioning disability to race, gender and other characteristics
California Gov. Gavin Newsom vetoed unopposed Bill 788 that would have prohibited apportioning disability to race, gender and other characteristics. As previously reported on this website on 3/26/2021, Senate Bill 788 was introduced on 2/19/2021 to amend Labor Code Section 4663 to prohibit consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics to determine the approximate percentage of the permanent disability caused by other factors.
While this bill sounds like a progressive shift, this writer believes it may actually contradict existing and recent case law addressing apportionment to genetics. See City of Jackson v. WCAB (Rice), (2017) 11 Cal. App. 5th 109, 216 Cal. Rptr. 3d 911, 82 Cal. Comp. Cases 437, the Court held apportionment of permanent disability in a workers' compensation case may be properly based on genetics or hereditability. See also Acme Steel v. WCAB. (2013) 218 Cal.App.4th 1137, 1139, 160 Cal. Rptr. 3d 712, the medical examiner apportioned 40 percent of the worker's hearing loss to “‘congenital degeneration’” of the cochlea. The Court of Appeal granted the employer's writ of review and remanded the matter to the Board, holding Labor Code sections 4663 and 4664 required apportionment for the nonindustrial cause due to congenital degeneration where substantial medical evidence showed 100 percent of the hearing loss could not be attributed to the industrial cumulative trauma.
This veto by Gov. Newsom is a win for defendants as the District Court of Appeals has already held that an injured worker’s genetic makeup could factor into a physician’s analysis of non-industrial factors for purposes of apportionment under Labor Code §4663.
To read the release from Gov. Newsom, click HERE
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Debra Tobias
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