BILL ANALYSIS
SB 1115
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Date of Hearing: June 25, 2008
ASSEMBLY COMMITTEE ON INSURANCE
Joe Coto, Chair
SB 1115 (Migden) - As Introduced January 22, 2008
SENATE VOTE : 23-13
SUBJECT : Workers' Compensation: Discrimination
SUMMARY : Prohibits discrimination on the basis of race,
religious creed, color, national origin, age gender, marital
status, sex or genetic predisposition in the process of
apportioning medical causation for purposes of determining an
employer's liability for the permanent disability of an employee
injured on the job.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits for workers who are injured on the job, including
payments to compensate an injured worker for the permanent
disability caused by an on-the-job injury.
2)Establishes a formula that is used to determine the extent of
permanent disability, which is expressed as a percentage, and
compensates the injured worker based on the percentage to
which he or she is permanently disabled.
3)Allows a permanent disability to be "apportioned" to the
various causes of the disability so that an employer is only
liable for the portion of the disability attributable to
employment by that employer.
4)Requires a physician, when making a report on permanent
disability, to make an apportionment determination by
providing an approximation of the percentage of the disability
that is caused by the injury at work, and an approximation of
the percentage of the disability that is caused by other
factors, whether industrial or nonindustrial, and whether
occurring before or after the workplace injury.
FISCAL EFFECT : To the extent the bill results in higher
permanent disability ratings, the state's costs would increase
for the payment of higher permanent disability awards to state
SB 1115
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employees.
COMMENTS :
1)Purpose: According to the Author, physicians are making
discriminatory generalizations, rather than examining actual
medical conditions or facts, when they are carrying out the
mandate that they assign percentages to the various causes of
a permanent disability. Specifically, the Author seeks to
prevent physicians from using "risk factors" as opposed to
actual medical conditions, when making these apportionment
determinations.
2)Discrimination in apportionment: Proponents point to several
examples of inappropriate discrimination in application of the
apportionment laws. In an unpublished appellate decision
( Vaira v. WCAB ), the Court of Appeal returned a case to the
Workers' Compensation Appeals Board (WCAB) because the record
was insufficient to determine whether the physician had based
his apportionment decision on medical facts that showed the
older female claimant suffered from osteoporosis, or on the
basis that the risk factor alone was sufficient to assign a
percentage of the causation to osteoporosis. Among the cases
reported in the media is a case of an African-American man who
had his permanent disability rating cut in half because of the
fact that African-American males have a higher incidence of
high blood pressure, and thus there was a genetic
predisposition to hypertension, aside from his workplace's
contribution to hypertension. These scenarios, among numerous
other potential fact patterns, are examples of unfair
reductions in permanent disability ratings that the bill is
designed to remedy.
3)Opposition: The opponents do not disagree that discrimination
based on risk factors associated with the bill's protected
categories is wrong. They respond, however, by arguing that
the law already provides protections, and the bill only serves
to open a Pandora's Box of problems.
Opponents argue that the Vaira case proves that the law is not
in need of change. The Court essentially determined that it
is improper to use risk factors, and sent the case back to the
WCAB to make sure that medical facts supported the
apportionment.
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With respect to unintended consequences, the opponents believe
that the effect of the bill would be to prohibit apportionment
even when there is an actual preexisting condition, if that
condition is in some way connected to one of the protected
categories.
The opposition initially took an "oppose unless amended"
position, hoping to craft language that defined the
distinction between inappropriate use of risk factors and
proper use of preexisting medical conditions. However, the
employer community was unable to reach any agreement on
amendments due to the consistent concerns expressed by their
various counsel that changes in the apportionment statute
would result in unintended consequences. Because they believe
Vaira evidences how the Courts view the issue, and because
that decision held that actual medical facts are required to
support apportionment, they argue the bill is unnecessary.
REGISTERED SUPPORT / OPPOSITION :
Support
Amalgamated Transit Union
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California Applicants' Attorneys Association (CAAA) (Sponsor)
California Conference of Machinists
California Labor Federation, AFL-CIO (Sponsor)
California School Employees Association, AFL-CIO
California State Conference of the NAACP
California State Employees Association (CSEA)
California Teachers Association
Engineers and Scientists of California
Glendale City Employees Association (GCEA)
IFPTE Local 21
International Longshore and Warehouse Union
Organization of SMUD Employees
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Service Employees International Union (SEIU) Local 1000
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers union, Western States Council
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Opposition
Acclimation Insurance Management Services
Allied Managed Care
ALPHA Fund
American Insurance Association (AIA)
Association of California Insurance Companies
California Association of Joint Power Authorities
California Chamber of Commerce
California Coalition on Workers' Compensation
California Farm Bureau Federation
California Grocers Association
California Hospital Association
California Hotel and Lodging Association
California Independent Grocers Association
California League of Food Processors
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California Restaurant Association
League of California Cities
National Federation of Independent Business
Wine Institute
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086