BILL ANALYSIS
SB 145
Page 1
SENATE THIRD READING
SB 145 (DeSaulnier)
As Amended April 27, 2009
Majority vote
SENATE VOTE :23-15
INSURANCE 7-3
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|Ayes:|Solorio, Charles | | |
| |Calderon, Carter, Feuer, | | |
| |Hayashi, Nava, Torres | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Garrick, Anderson, Niello | | |
| | | | |
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SUMMARY : Prohibits discrimination on the basis of specified
protected classes for purposes of apportioning permanent
disability, and clarifies the law governing compensability where
criminal violence is committed against an employee in the
workplace. Specifically, this bill :
1)Prohibits discrimination on the basis of race, religious
creed, color, national origin, age, gender, marital status,
sex or genetic characteristics 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.
2)Provides that no workers' compensation claim may be denied
because the injury or death was related to the worker's race,
religious creed, color, national origin, age, gender, marital
status, sex, sexual orientation, or genetic characteristics.
3)Defines "genetic characteristics" by citation to the life and
health insurance anti-genetic discrimination law that has been
in effect and used by insurers for a number of years.
EXISTING LAW :
1)Provides for a comprehensive system of workers' compensation
benefits for workers who are injured on the job, including
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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 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.
5)Provides for the payment of death benefits to dependents of an
employee in the case of a work-related injury causing death.
6)Provides generally, based on case law, that an injury or death
caused by assault or other criminal behavior directed at an
employee is not work-related in cases where there is a prior
relationship between the employee and the attacker, but is
work related in the absence of a prior relationship. The
typical, although not exclusive, example of this issue
involves domestic violence committed where the victim is
tracked down at work and attacked.
FISCAL EFFECT : This bill is tagged as a nonfiscal bill, but
employer opponents raise concerns that the apportionment
provisions, in particular, could have the effect of increasing
costs by hampering the ability of an employer, including the
state, to prevail in apportionment cases.
COMMENTS :
1)According to the author, the bill serves two purposes. First,
it is argued that some physicians are making discriminatory
generalizations, rather than examining actual medical
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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. Second, the bill is designed to clarify the
law with respect to "prior relationship" cases as a result of
a case involving an employee of Dollar Tree who was murdered
while at work by an assailant with whom she had no prior
relationship.
2)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 of the risk factor alone.
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.
3)An African-American woman was murdered while at work at a
Dollar Tree store by an individual who, it was later
determined during a psychiatric evaluation, went out intending
to kill the first black person he saw. Unfortunately, the
Dollar Tree employee was that person. Dollar Tree defended
the claim for workers' compensation death benefits by relying
on at least one "personal motivation" case that involved an
element of ethnic hatred, but also involved a prior
relationship between the killer and the victim, and the
killing only coincidentally occurred on property related to
the victim's job. Dollar Tree eventually settled this case,
but the case presents the issue of what type of personal
motivations qualify to defeat a claim for workers'
compensation benefits. Because case law was sufficiently
vague to cause Dollar Tree to initially deny the claim,
further clarity in the law is appropriate.
4)The opponents do not disagree that discrimination based on
risk factors associated with the bill's protected categories
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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. Specifically, 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.
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. At a minimum, they are concerned that the bill
would generate unnecessary litigation.
With respect to the death benefits case, opponents do not
question the fact that the Dollar Tree case ought to be
compensable. However, they are concerned that the language
used in the bill could have the effect of impacting a number
of cases that are not as clearly compensable. Potential
amendments have been proposed that would remove this part of
their opposition, although those amendments may be overly
narrow and present insurmountable proof problems for an
applicant. At the time this analysis was prepared, the author
had not responded to the offer of amendments.
5)This Committee, and the Assembly, unanimously passed AB 1093
(Yamada), which addresses the same death benefits issue as
this bill. AB 1093, however, is drafted somewhat differently
than SB 145, and efforts to make the language consistent have
thus far been unsuccessful. The Senate Industrial Relations
Committee unanimously passed AB 1093 on June 25, 2009.
6)Last year, SB 1115 (Migden) addressed the apportionment
discrimination issue in virtually the same language as SB 145.
It was vetoed by the Governor. The veto message stated:
This bill is intended to provide that race,
religious creed, color, national origin, age,
gender, marital status, sex, or genetic
predisposition shall not be considered a cause or
other factor of disability when determining
apportionment of disability for the purposes of
workers' compensation. While I support the intent
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of this measure, I do not believe it is necessary.
Current law, as well as court rulings, adequately
protects injured workers from inappropriate
application of apportionment statutes. In
addition, I am concerned that the manner in which
this bill is worded could inadvertently create new
ambiguities in the law and result in increased
litigation.
Analysis Prepared by : Mark Rakich / INS. / (916) 319-2086
FN: 0001830