Currently, doctor are required to provide opinions on apportionment, not only between various injuries, but also to non-industrial factors. Doctors have provided apportionment based upon a person's pre-disposition to certain injuries and conditions, sometimes based upon their age, gender or genetics. The law states that an employer is only liable for the permanent disability directly caused by the industrial injury. Case law also holds that apportionment cannot be to risk factors. There is already a fine line as to how apportionment can be applied.
If SB 788 passes, then doctors will no longer be allowed to apportion to non-industrial factors of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation or genetic characteristics. This could likely return the idea of the "eggshell plaintiff," one who may be predisposed to a certain condition, but the employer then bears the liability for all of the permanent disability.
SB 788 has been moved to the Senate Appropriations Committee.
The bill states that the percentage of permanent disability attributed to nonindustrial causes should not include “consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation or genetic characteristics.”