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 ----------------------------------------------------------------- |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 FN: 0006536