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  ****