"The chairman of the Senate Insurance Committee is pushing legislation to overturn a California Court of Appeals decision that condoned apportioning part of a worker’s permanent disability to a genetic predisposition.

Sen. Steve Bradford, D-Gardena, on Wednesday amended Senate Bill 899 to propose language that would abrogate the 3rd DCA decision in City of Jackson v. Workers’ Compensation Appeals Board (Rice).

In City of Jackson, the appellate court overturned the WCAB after it said a qualified medical evaluator was not allowed to apportion 49% of Christopher Rice’s disability to personal factors and “genetic issues. The WCAB said apportionment can’t be based on immutable characteristics.

But the appellate court said in its April 2017 decision that there was “no relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics.”

Bradford’s amended bill says the decision was “abhorrent” and violates legal norms in California.

“The City of Jackson decision effectively legalizes discrimination on the bases of genetics and heritability, including race, gender and religion, creating disparate impacts in the form of reduced permanent disability benefits to injured workers,” the bill reads.

The bill proclaims the intent of the Legislature to abrogate the decision in City of Jackson and to prohibit other courts from apportioning disability to immutable factors. The bill also declares that the intent of lawmakers is not to prohibit apportionment to “specific identifiable factors.”

The bill is in the Senate Rules Committee pending assignment to a policy committee."  Work Comp central

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Has Sen. Bradford bothered to read Labor Code section 4663?

​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) 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 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. 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 that 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.

COUNTY OF SAN DIEGO,
Petitioner,
v.
WORKERS' COMPENSATION APPEALS
BOARD and KYLE PIKE,
Respondents.
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​The question presented in this writ proceeding is straightforward. Is petitioner,
County of San Diego (the County), correct that Labor Code section 4656, subdivision
(c)(2)1 precludes respondent, Workers' Compensation Appeals Board (the Board),
from awarding respondent, Kyle Pike, temporary disability payments for periods of
disability occurring more than five years after the date of the underlying injury that
Pike suffered while working for the County? We conclude that the plain language of
the statute indicates that the answer to this question is, "Yes." Section 4656,
subdivision (c)(2) provides, "Aggregate disability payments for a single injury
occurring on or after January 1, 2008,[2] causing temporary disability shall not extend
for more than 104 compensable weeks within a period of five years from the date of
injury." (Italics added.) Accordingly, we annul a Board order affirming a workers'
compensation administrative law judge's order that awarded temporary disability
benefits for periods of disability occurring more than five years after Pike's injury.

To read the entire decision please click here: www.courts.ca.gov/opinions/documents/D072648.PDF