BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 145|
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THIRD READING
Bill No: SB 145
Author: DeSaulnier (D)
Amended: 4/27/09
Vote: 21
SENATE LAB. & INDUS. REL. COMMITTEE : 4-1, 3/25/09
AYES: DeSaulnier, Ducheny, Leno, Yee
NOES: Wyland
NO VOTE RECORDED: Cogdill
SUBJECT : Workers compensation
SOURCE : California Applicant Attorneys Association
DIGEST : This bill prohibits the consideration of race,
national origin, gender, sex, genetic characteristics, and
certain other factors in the delivery of workers'
compensation benefits and the determination of an
apportionment of the causes of an industrial disability.
ANALYSIS :
Existing law:
1. Establishes a workers' compensation system that provides
benefits to an employee injured at work, irrespective of
fault. This system requires all employers to secure
payment of benefits by either securing the consent of
the Department of Industrial Relations to self insure or
CONTINUED
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by securing insurance against liability from an
insurance company duly authorized by the state.
2. Requires that a physician examine an injured employee
and, and when determining permanent percentages of
permanent disability, the physician must take into
account the nature of the physical injury or
disfigurement, the occupation of the injured employee,
and his/her age at the time of the injury, with
consideration being given to an employee's diminished
future earning capacity.
3. Requires that a physician make an "apportionment
determination" with respect to the permanent disability.
That is, the physician must find (a) what approximate
percentage of the permanent disability is caused by the
direct result of the injury arising out of and in the
course of employment, and (b) what approximate
percentage of the permanent disability is caused by
other factors both before and subsequent to the
industrial injury. If the physician determines that the
disability is partially the result of these "other
factors" the (degree of) impairment rating must be
reduced by the relevant percentage, ultimately resulting
in a lower permanent disability rating and reduced
permanent disability indemnity payments.
4. Provides that no person in the State of California
shall, on the basis of race, national origin, ethnic
group identification, religion, age, sex, sexual
orientation, color, or disability, be unlawfully denied
full and equal access to the benefits of, or be
unlawfully subjected to discrimination under, any
program or activity that is conducted, operated, or
administered by the state or by any state agency, is
funded directly by the state, or receives any financial
assistance from the state.
This bill:
1. Prohibits the denial of workers' compensation benefits
claim if the employee's injury or death was related to
the employee's race, religious creed, color, national
origin, age, gender, marital status, sex, sexual
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orientation, or genetic characteristics.
2. Provides that race, religious creed, color, national
origin, age, gender, marital status, sex, sexual
orientation, or genetic characteristics shall not be
considered a cause or other factor of disability with
regard to any workers' compensation apportionment
determination.
3. Makes findings on federal and state laws on
discrimination, previous reductions and denials in
workers' compensation benefits that would normally be
prohibited in a work environment as discriminatory, and
declare the intent of the Legislature to enact
legislation to apply existing workplace discrimination
protections to workers' compensation benefits.
Comments
This bill seeks to tackle two different discrimination
issues in the workers' compensation system: denial of
benefits due to characteristics such as race or national
origin, and apportionment based on race or gender, rather
than actual documented evidence.
The issue of the denial of benefits due to characteristics
such as race first came to the Committee's attention with
the denial of workers' compensation death benefits to the
surviving family of Taneka Talley late last year. Ms.
Talley was murdered in March 2006 by a white supremacist
while she was opening a Dollar Tree store in Fairfield.
Dollar Tree's insurer, Specialty Risk Services, argued that
because Ms. Talley's murder was racially motivated, and
therefore personal, despite the fact she was killed at the
Dollar Tree store and would not have been killed has she
not been present at the store.
This bill seeks to address this issue with the addition of
language similar to Government Code 11135, which prohibits
the denial of workers' compensation injury or death
benefits if the employee's injury or death was related to
the employee's race, religious creed, color, national
origin, age, gender, marital status, sex, sexual
orientation, or genetic characteristics.
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The second issue this bill seeks to address is the issue of
apportionment on the basis of "risk factors" such as age,
race, sex, and genetic characteristics, rather than basing
the apportionment on actual documented and evaluated
evidence of pre-existing medical condition.
Prior/Related legislation
AB 1093 (Yamada) would prohibit the denial of workers'
compensation benefits solely because the motivation of what
caused the employee's injury or death was related to the
employee's immutable characteristics.
SB 1115 (Migden) of 2008 would have barred the
consideration of race, national origin, gender, sex,
genetic predisposition, and certain other factors in the
determination of an apportionment of the causes of an
industrial disability. It was vetoed by the Governor.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 4/29/09)
California Applicant Attorneys Association (source)
American Federation of State, County and Municipal
Employees, AFL-CIO
California Communities United Institute
California Labor Federation, AFL-CIO
California Nurses Association
California School Employees Association, AFL-CIO
Glendale City Employees Association
Organization of SMUD Employees
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
OPPOSITION : (Verified 4/29/09)
Acclamation Insurance Management Services
Association of California Insurance Companies
California Association of Joint Powers Authorities
California Chamber of Commerce
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California Chapter of the American Fence Contractors'
Association
California Fence Contractors' Association
Engineers Contractors' Association
Flasher/Barricade Association
Marin Builders' Exchange
ARGUMENTS IN SUPPORT : The California Applicant Attorneys
Association (CAAA), the sponsor of the bill, argues that
before SB 899 (Poochigian), Chapter 34, Statutes of 2004,
which was a major overhaul of the workers' compensation
system, employers could not penalize an injured worker for
a pre-existing condition if it did not impair the worker's
ability to do his/her job. Since SB 899, however, the CAAA
reports that apportionment has occurred on the basis of
risk factors, such as race, gender, or age, regardless of
symptoms or if the risk factors had any affected the
ability of an individual to do his/her job. CAAA believes
that this bill will bring the workers' compensation
apportionment process in line with federal and state
anti-discrimination law, and ensure that the apportionment
process can continue without penalizing workers on the
basis of discriminatory risk factors.
ARGUMENTS IN OPPOSITION : The Chamber of Commerce
(CalChamber) believes that this bill undermines the
fundamental workers' compensation reforms contained in SB
899 (Poochigian), Chapter 34, Statutes of 2004. CalChamber
argues that SB 899 was a reaffirmation of the concept of
apportionment, and that prior to SB 899 apportionment was
significantly weakened due to court decisions. Moreover,
CalChamber argues that the sponsors of this bill have made
the false argument that the current system of apportionment
in California allows for discrimination, as Labor Code
Sections 4663 and 4664 do not allow for discrimination
based on protected classes. CalChamber also believes that
this bill would muddy apportionment law and increase
workers compensation costs.
AGB:do 4/30/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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