BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 145
                                                                  Page  1

          SENATE THIRD READING
          SB 145 (DeSaulnier)
          As Amended  August 19, 2010
          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 |     |                          |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           SUMMARY  :  Prohibits discrimination on the basis of specified  
          protected classes for purposes of apportioning permanent  
          disability.  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)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  
            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.









                                                                  SB 145
                                                                  Page  2

          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. 


           FISCAL EFFECT  :  This bill is tagged as a nonfiscal bill, but  
          employer opponents raise concerns that the bill 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 addresses a problem where  
            some 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)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.  









                                                                  SB 145
                                                                  Page  3

          3)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.  Specifically, opponents argue  
            that the  Vaira  case proves that the law is not in need of  
            change.  They are concerned that the bill would generate  
            unnecessary litigation.

          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 follows:
            "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 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


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