Happy Wednesday, dear readers!
As you might recall, the defense community scored a victory with the case of Rice, wherein the Court of Appeal upheld a QME’s apportionment of applicant’s permanent disability to genetics. The Court of Appeal declined to disturb the Court of Appeal’s opinions, so that’s that. It’s settled, dear readers – we can all go home. Genetics and hereditary factors can be a source of apportionment.
But… what’s this? It looks like some people in the California Legislature aren’t happy that employers will not be responsible for paying benefits for permanent disability not caused by the employment.
Senator Steve Bradford (D-35th District), has introduced Senate Bill No. 617 which would “require that heredity and genetics be excluded as bases for causation for purposes of determining apportionment of permanent disability.”
The bill would essentially overrule the Rice decision, prohibiting apportionment to non-industrial factors if those factors are the products of genetics or heredity. Previously, Governor Brown vetoed a similar bill that would have prevented apportionment to menopause or child birth, so hopefully we could expect a similar result from the Governor’s mansion should any such bill reach its desk.
Practically speaking, what could possibly be the logic of such a bill? California’s employers are already laden with burden after burden and insurance in California is among the most expensive in the Union. It is no stretch of the imagination to claim that California is effectively pricing the labor of Californians out of the market.
Hopefully, SB 617 will join the pantheon of other bad ideas in history’s forgotten pages, rather than becoming California law. Should California’s legislature ever grant your humble blogger the power to veto its bills, I assure you this will be on the chopping-block. For now, though, your humble blogger must resign himself to rolling his eyes in disapproval and hoping that those with influence in Sacramento will see this proposed law to its just end.
I randomly found myself in the Legislative Changes portion of Lexis today on LC 4663 and saw that this passed both chambers of the legislature and headed to Gov. Brown’s desk. Lexis calls the change highly likely:
(B) 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.
The problem with Rice is that apportionment to genetics is explicitly prohibited by federal law.(GINA). This law explicitly states that health care coverage cannot discriminate based on genetics, nor can this information be collected.
The Genetic Information Nondiscrimination Act of 2008 (P.L. 110-233, 122 Stat. 881)1, also referred to as GINA, is a Federal law that prohibits discrimination in health coverage and employment based on genetic information.
As an applicant’s attorney, if the defense wants to seek genetic information, I tell them to pound sand as this is prohibited by federal law.