AB 1368 and the Attack on Substantial Evidence

Saturday, October 7, 2006 | 0

By David J. DePaolo

California Gov. Arnold Schwarzenegger signed in to law last week AB 1368. That bill amended one of the apportionment statutes, Labor Code section 4663, to exempt designated public safety employees from apportionment due to pre-existing disability arising out of various maladies. This bill might be the saving grace to those applicant attorneys whose primary client referral base is public safety employees as it purportedly does away with apportionment for the most frequent injuries and illnesses which public safety employees incur.

Specifically, the amendment to LC 4663 added subdivision (e), which provides:

"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."

Note, this amendment does NOT say that (a) through (c) do not apply to impairments or disabilities covered under 3212-3213.2.

This amendment poses several other issues relative to statutory construction and evidence.

First, subdivision (a) of 4663 says that "Apportionment of permanent disability shall be based on causation." This mandate will no longer be applicable to the designated public safety employees and related injuries/illnesses set forth in Labor Code sections 3212-3213.2 as of 1/1/07. But, what does this mean? Does it mean that there is no apportionment relative to disabilities arising out of these illnesses/injuries? Or is the standard for apportionment different? It doesn't say that there is no apportionment, just that apportionment to causation is not a factor.

But it doesn't really matter, it seems, because a physician reporting on an industrial permanent disability for these public safety employees no longer needs to address causation of disability since the bill removed the application of subdivision (b) to these employees.

The elimination of subdivision (c) by AB 1368 ensures that the rules of substantial medical evidence need not apply to cases involving police officers, firefighters and other public safety employees since a physician need not now include any determination on apportionment, and the physician need not now consult with other specialists in the event the contemplated permanent disability is outside his or her area of specialty.

Finally, it seems the legislature in this case has confused disability with injury.

A good read of the various code sections affected by this bill reflects a general theme that the injury shall be presumed to arise out of and in the course of the employment, and that the disease "shall in no case be attributed to any disease existing prior to such development or manifestation."

This takes care of apportionment to pathology, but there is nothing in these code sections that say you can not apportion to a pre-existing disability. The sections speak only to cause of injury AOE/COE, not cause of disability.

The only exception is 3213.2 which was added in 2001 and provides that peace officers wearing a duty belt will have been presumed to have a low back "impairment" AOE/COE. But this presumption previously was "disputable".

The bill does not eliminate 4664 apportionment though, so public safety employees with a pre-existing Award will still be subject to apportionment, and all of the current vagueness surrounding apportionment calculation.

Consequently, the effect of AB 1368 appears to be the elimination of a mandatory medical discussion of apportionment. The question then is, if there is a prior award, and the physician pursuant to the new 4663 does not discuss that award, is the physician's report substantial evidence?

David J. DePaolo is the president and CEO of WorkCompCentral.

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