BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 145| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ VETO Bill No: SB 145 Author: DeSaulnier (D) Amended: 8/9/10 Vote: 21 SENATE LAB. & INDUS. REL. COMMITTEE : 4-1, 3/25/09 AYES: DeSaulnier, Ducheny, Leno, Yee NOES: Wyland NO VOTE RECORDED: Cogdill SENATE FLOOR : 23-15, 6/1/09 AYES: Alquist, Calderon, Cedillo, Corbett, Correa, DeSaulnier, Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod, Oropeza, Padilla, Pavley, Romero, Simitian, Steinberg, Wiggins, Wolk, Yee NOES: Aanestad, Ashburn, Benoit, Cogdill, Cox, Denham, Dutton, Harman, Hollingsworth, Huff, Maldonado, Runner, Strickland, Walters, Wyland NO VOTE RECORDED: Wright, Vacancy ASSEMBLY FLOOR : 47-27, 8/23/10 - See last page for vote SENATE FLOOR : 22-14, 8/26/10 AYES: Alquist, Calderon, Corbett, Correa, DeSaulnier, Ducheny, Florez, Hancock, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Romero, Simitian, Steinberg, Wolk, Wright, Yee NOES: Aanestad, Ashburn, Blakeslee, Cogdill, Denham, Dutton, Emmerson, Harman, Hollingsworth, Huff, Runner, Strickland, Walters, Wyland NO VOTE RECORDED: Cedillo, Oropeza, Wiggins, Vacancy CONTINUED SB 145 Page 2 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. Assembly Amendments are technical in nature. 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 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 SB 145 Page 3 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 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 SB 145 Page 4 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 Senate Labor and Industrial Relations 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. 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. SB 145 Page 5 FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 4/30/09) (unable to reverify) 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 Peace Officer's Research Association of California San Bernardino Public Employees Association San Luis Obispo County Employees Association Santa Rosa City Employees Association OPPOSITION : (Verified 4/30/09) (unable to reverify) Acclamation Insurance Management Services Association of California Insurance Companies California Association of Joint Powers Authorities California Chamber of Commerce 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 SB 145 Page 6 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. GOVERNOR'S VETO MESSAGE: I am returning Senate Bill 145 without my signature. This bill would prevent a workers' compensation claim from being denied or impacted by an apportionment determination because the employee's injury or death was related to the employee's race, religious creed, color, national origin, age, gender, marital status, sex, or genetic characteristics. This measure, like Senate Bill 1115 (2008), which I previously vetoed, would significantly undermined the state's workers' compensation apportionment reforms of 2004. In addition, although this measure purports to address instances where a workers' compensation claim was improperly denied when a hate crime was committed against an employee, this issue has been addressed by Assembly Bill 1093, which I signed last year. For these reasons, I am unable to sign this bill. ASSEMBLY FLOOR : AYES: Ammiano, Arambula, Beall, Block, Blumenfield, Bradford, Brownley, Buchanan, Caballero, Charles SB 145 Page 7 Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong, Galgiani, Gatto, Hayashi, Hernandez, Hill, Huber, Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning, Nava, V. Manuel Perez, Portantino, Ruskin, Salas, Saldana, Skinner, Solorio, Swanson, Torlakson, Torres, Torrico, Yamada, John A. Perez NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill, Conway, Cook, DeVore, Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman, Harkey, Jeffries, Knight, Logue, Miller, Nestande, Niello, Nielsen, Norby, Silva, Smyth, Audra Strickland, Tran, Villines NO VOTE RECORDED: Bass, Fuentes, Furutani, Hall, Vacancy, Vacancy PQ:do 10/5/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****